bridges versus the department of veterans affairs all the rules ok well i'm sure you'll you'll become informed as the argument goes on but you can start whenever you're ready that morning thank you here i was for being here this morning and on behalf of mr frank bridges i want to thank you for hearing oral arguments were just so grateful when you got notice that you were going to hear this case he is seventy five years old a disabled veteran back in ro does not work for the abettors and ministrations they're an independent court and they feel that quite strongly about their independence i do your honor i mean no disrespect it's it's it's been a difficult process for mr ridge is he believes strongly that he was not mentally ill before he joined the service that he had a normal childhood into the unfortunate circumstances he's been mentally ill here so that you will send him a message once and for all that what happened back in  was not something that was he was predisposed and he did not have mental illness counsel whether he was predisposed or not so one of the regulations thirteen zero three c that was in effect in  fifty pacifically exclude it seems to me mental deficiencies from the definition of diseases or injuries in the meaning of the apply couple legislation and as i understand it your from the definition of diseases and injuries in the meaning of your political legislation mental deficiency and doesn't have you know that today the question is should they do he this he does respect your honor i think you're for leaving the same trap as the government the presumption is a fact finding tour to get to the result we didn't allege and then nine hundred fifty that we have the disease what happened was this young man was taken in a straight jacket from his barracks to a mental hospital in a complete mental breakdown he's lying on his back and the government service we now have to decide whether you're compensable or not i'm very sympathetic to the fact that i'm really bound and  don't mean to avoid your question the question is should he have been given the presumption before the presumption of innocence is something we're all familiar with you don't say after we determine guilt or innocence then we decide whether to give the presumption of innocence and say to the government you have to prove beyond a reasonable doubt you do that in the first instance and in the government the congress did it for earlier reason they understood the mismatch this is david versus goliath this is an eighteen year old i understand your legal argument but it just lets the look at in the context of the facts of this case what happens here i take it is that he gets a diagnosis from a medical professional who looks at him and says this diagnosis is a personality disorder right then the reading is done on this plane and says well the diagnosis is personality disorder personality disorder is outside of the scope of what's compensable what in what sect does the presumption what role does it have to play in that relatively simple process there wasn't any conflicting evidence so far as i our stance the diagnosis and that's the end of it then there's no presumption the presumption comes into the aros stage he's the decision maker who could this is the agency below and there are only looks at the records which consist of this diagnosis right and he says now i'm going to give the presumption right i first want to see the entrance exam that when you join the military no evidence of mental illness immediately we have a presumption problem we're the preexisting evidence that it really existed his military but i think mr curran guess what the panelist sort of wrestling with here is if in fact the diagnosis had been something that was compensable in other words if your client had been diagnosed with paranoid schizophrenia or have he would have been he would have been compensable and they would have said well there's nothing in his there's no existing condition and the only way at that point the government could've or the like if it was in the marine corps could've or  veterans administration could have denied the claim was to establish by clear and convincing evidence that in fact this was a preexisting condition but that wasn't aggravated and he would have prevailed what do they know what is diagnosed at the at the examination if he had been diagnosed with depression or schizophrenia or whatever he would have been compensated correction but when it's not  have been compensated and the only way you would have gotten to a preexisting condition would have been if the government had raised the issue and said no no he had this before then the government would have had a high burden of proof and that's a different case if you ask the right broken leg is compensable exactly not if you said it is whole life that's a real no you know this compensable kind of injury as to which it's reasonable to assume that it may have occurred at some point such as and service whereas suppose to take another example that may be easier than this one if the diagnosis is of a mental retardation safer for lack of a better term that the person is just not got the mental ability to to suggestion that it occurred as a result of some incident in the service it's congenital retardation in that setting the presumption it seems to be doesn't have any effect as there's not any role to play what what what how was it my facts how the presumption worked in that setting you would look and you would say well it's true that we didn't see anything at the end intake but of course we wouldn't wouldn't expect to have a different  if there were and you have this case in terror if there is a degenerative disease which we can state with medical certainty we diagnose it it is a gender disease you could pick it up at the entrance exam you're this is the work right about connected with you had they gone through the exercise of the presumption they would have known to a certainty that diagnosis was wrong the diagnosis depends on symptoms throughout your life you can't have a pre soundness in this case when he joined the service the notion that he came down with the disease afterwards is still not compensable disease even if we give a presumption of aggravation you had it before it got worse in service it's still not a comp and in my case all the the r o has before it is the fact that this wasn't picked up the person went into the service and then there was an ultimate determination that the person's unsuitable because of lack of mental ability we believe you're missing is just  isn't picked up at the entrance exam doesn't mean the veteran was know we have to go back in and do the hard work do the real work was a preexisting condition and there had to be symptoms they get the government keep saying we're was mr bridges alternative diagnosis we're with his sort of didn't he have a psychiatrist who was fifteen years old and gave an alternative that was the diagnosis of because he was healthy and they would have figured there was no no but they would have diagnosed i mean there was no diagnosis of at the time of the examination of a compensable condition i mean are you saying that if they'd gone back the there would have been evidence of a of a compensable can do no exactly the contrary they would would ask for all his childhood medical records they would have made an investigation said you know this seems like he had a normal eighteen years of life then they would have gone back to the diagnosis and say is it possible rebuttal time plus an additional minute but will restore your your full five minutes of of rebuttal because you had a number of questions and we'll hear from the governor really two arguments in the first argument as i understood from the brief was that the diagnosis was wrong and the second argument was what we've been discussing at length i guess of mr harwood this question of whether they improperly  applied the presumption analysis or didn't apply it now certainly i think you're correct on the first one we don't have jurisdiction we can look at the correctness or incorrectness of diagnosis but the second one does seem to be the presumption does sound the same aggravation and we should treat his decision as such in the absence of the contrary and i didn't see that brief that argument breaks in your brief so am i wrong can you show me where it is i do see that you cite natalie but not for that proposition death in the absence of evidence to the contrary the ratings board is presumed to have made the requisite make the requisite findings that's different from apply the appropriate legal presumption isn't it i mean you're not saying that you're saying this in the context of a fact finding not in the context of did the the day under this framework they didn't have to set out in detail the basis for their findings what is your view i think you alluded to it briefly but i want to make sure i understand what your deal is just the right protocol here for least on its face suggests a condition that would be in the category of conditions such as a personality disorder does when and in what way does the presumption come into play in your view if the  purposes of controlling well this is exactly what they did and you in that and you describe two different at least technically different protocols which do you think it you start with the presumption it makes the diagnosis potentially something that you would look you look at with a more skeptical eye if you start with the presumption that that this what we're trying to struggle with here is to figure out which are the compensable mental illness and which are the not as well as congress make no distinction mental illness is compensable to the same extent as physical illness or physical disease they are all together those that are not compensable are those that are preexisting if you alive in the military with elance with the defect with the disease you don't get compensation if it's caused as a result of your service in the military do that's the critical question not whether we can characterize it as a particular disease or diagnosis and that's what the presumption is so important here is to help figure out what's preexisting and what isn't and it's just the same for physical or mental if all of a sudden have a soldier show up at the hospital with a condition we have to figure out did he have the condition when he arrived or didn't he and he gets the presumption that he didn't have the condition if they didn't know that on the entrance exam that's not the end of the discussion the discussion goes on from there into a fact finding could we figure out whether he had the condition before or not whether symptoms that there  some diseases in which it is possible to pick up and i think in the terry case you handled it correctly where you sort of degenerative disease there would have been no way to pick that up on the entrance exam perhaps hearing loss would be another mental this is not one of those it doesn't lie asleep inside you based on your d n a in your genes and all of a sudden just miraculously arrive in the twenty's i think and you know i i don't know whether you're right or wrong but it's your statement here is as far as i can see isn't supported by anything in the record and contrary to my experience which is there are many mental conditions that are essentially latent until there's some kind of  some something that triggers the mental disease but it was it was there before now you can argue whether the stress or the trigger whatever it is ought to be enough to render that condition compensable or not but the condition pretty existed even though it may not have been symptomatic you're right there could be some that are like that that's not the case here and yet here mr bridges we know first today based on the v a s own findings in two thousand that he did not have the preexisting the symptoms or even visit us and that's the problem it is difficult to diagnose which category of mental illness to put it in and congress knew that they wanted to get it wrong with these doctors and they gave them the had a personality disorder or condition in one nine hundred fifty but over a period of more than forty five years he developed depression mean that when he was diagnosed with a ninety nine or forty five his claim for ninety nine was depression yet but based on one hundred fifty right now but i'm saying what is a what is a factual matter isn't it certainly possible that someone could have a personality disorder in one nine hundred fifty but then in forty years later they developed into a condition of depression which was service connected by virtue of events that occurred during the service as determined by that as it was possible to have two different avenues going at the same time i triggers of not being allowed to go on paying last respects to his dying father and being put under combat training to get ready to go to the korean war and most anybody would have responded the way he did and they should have considered that under the presumption had they applied the presumption they would have followed way those facts and i believe they would have been right at that time thank you mr harwood the case is submitted