[00:00:00] Speaker 00:
George versus Wilkie, 18-1736.

[00:00:48] Speaker 00:
Mr. Carpenter, you're resuming five minutes of your time for rebuttal.

[00:00:51] Speaker 00:
Yes.

[00:00:52] Speaker 00:
You may proceed.

[00:00:59] Speaker 01:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Bobby George.

[00:01:04] Speaker 01:
Section 3.156C of Title 38 of Federal Regulations was misinterpreted by the Veterans Court when it failed to recognize that the VA, upon receipt of relevant service department records,

[00:01:18] Speaker 01:
was required, that had not been associated with the claims file, was required to immediately reconsider Mr. George's 1987 claim.

[00:01:25] Speaker 00:
Mr. Comfort, it seems to me that your argument is less an interpretation of 3.156C1 than it is the application of that regulation to the facts.

[00:01:38] Speaker 00:
I question whether we have jurisdiction to hear your case.

[00:01:43] Speaker 01:
I disagree because the Veterans Court relied upon an interpretation of 3.156e that the board had applied the correct legal principles underlying that regulation.

[00:01:56] Speaker 01:
In order to apply the correct legal principles, as the court found the board did in the decision that was on appeal to the Veterans Court, they necessarily had to interpret

[00:02:06] Speaker 01:
those regulations and the legal principles that they found had been correctly applied.

[00:02:11] Speaker 01:
So this is not a question of application of law to fact.

[00:02:15] Speaker 01:
This is a question of interpretation of those legal principles that are articulated in 3.156C.

[00:02:23] Speaker 01:
And those legal principles require that the VA immediately upon receipt of relevant service department records

[00:02:32] Speaker 01:
that had not been previously associated with the veterans claims file is required to reconsider the original claim.

[00:02:40] Speaker 01:
That's not what happened here.

[00:02:42] Speaker 03:
So is that your theory of cue now that 3.156 requires a complete reconsideration of the claim when service records are

[00:02:51] Speaker 03:
Um, newly associated.

[00:02:53] Speaker 01:
That is the, excuse me, that is the allegation of clear and unmistakable error that we made.

[00:02:59] Speaker 01:
Where did you make that allegation to the board?

[00:03:01] Speaker 01:
The veterans court, excuse me, that the board in its 2014 decision did not correctly apply 3.156C when it remanded the case back for a medical opinion.

[00:03:14] Speaker 03:
Right.

[00:03:15] Speaker 03:
Where in your August 2015 motion, key motion to the board, did you make that theory?

[00:03:23] Speaker 01:
when we made it in the motion, we did not.

[00:03:25] Speaker 01:
Where?

[00:03:26] Speaker 02:
Because to follow up on Judge Hughes' question, it looked like you identified three specific possibilities of Q. And none of them are articulated in the way you articulate them now.

[00:03:39] Speaker 02:
And so the concern is that there's a jurisdictional problem in light of our Andre case.

[00:03:45] Speaker 01:
And I apologize, Your Honor.

[00:03:48] Speaker 01:
What I was attempting to say was that we articulated the basis of Q

[00:03:53] Speaker 01:
the clear and unmistakable error allegation as the failure to correctly apply.

[00:03:58] Speaker 01:
We did not articulate in that request for revision the specific arguments that are being made now.

[00:04:09] Speaker 03:
a direct review.

[00:04:09] Speaker 03:
If you had made these in a direct review from the final 2014 board decision, they might be live.

[00:04:17] Speaker 03:
But in Q, doesn't our precedent and the Veterans Court precedent require you to set forth the factual and legal basis for your Q claims with specificity?

[00:04:27] Speaker 01:
Yes, it does, Your Honor.

[00:04:28] Speaker 01:
And I'm suggesting that the allegation that

[00:04:31] Speaker 01:
3.156C was not correctly applied by the board is a sufficient articulation.

[00:04:38] Speaker 03:
That's not good enough.

[00:04:38] Speaker 03:
That's a general allegation that this regulation wasn't properly applied.

[00:04:43] Speaker 03:
You had three specific examples of why it wasn't properly applied.

[00:04:47] Speaker 03:
Now you're arguing a fourth, but that wasn't included.

[00:04:50] Speaker 03:
Let me ask you this.

[00:04:52] Speaker 03:
I know you disagree.

[00:04:53] Speaker 03:
You think that the broader allegation is enough.

[00:04:55] Speaker 03:
If I disagree on that legal point,

[00:04:58] Speaker 03:
You didn't raise this specific argument to the board.

[00:05:02] Speaker 03:
And if that's correct, under our Andre precedent, wouldn't the Veterans Court have lacked jurisdiction to hear that argument as a cue claim?

[00:05:12] Speaker 01:
That would be correct, Your Honor.

[00:05:13] Speaker 03:
OK, I mean, I'm not trying to trick you.

[00:05:16] Speaker 03:
I know you disagree with the level of specificity, but I appreciate your candor answering the hypothetical.

[00:05:21] Speaker 01:
And I think that that's important here, Your Honor, because what we're reviewing here is not the allegation that was made.

[00:05:29] Speaker 01:
What we're reviewing here is the decision that was made by the board, or excuse me, by the Veterans Court.

[00:05:34] Speaker 03:
Sure, but if the Veterans Court didn't have jurisdiction, the fact that they went ahead and heard your argument doesn't

[00:05:43] Speaker 03:
you know, relieve the jurisdictional bar?

[00:05:48] Speaker 01:
It does not, Your Honor.

[00:05:49] Speaker 03:
Can I ask you a different question?

[00:05:51] Speaker 01:
If I could just digress to Andre.

[00:05:54] Speaker 01:
I was also counsel in Andre.

[00:05:56] Speaker 01:
Yes, I know.

[00:05:57] Speaker 01:
In Andre, the allegation was completely different than the allegation that had been made and decided by the board.

[00:06:06] Speaker 01:
That's not the case here.

[00:06:10] Speaker 01:
You're correct.

[00:06:11] Speaker 01:
You can interpret Andre to require the much more sophisticated level of allegation than is required.

[00:06:21] Speaker 01:
But this is not an Andre shift from one theory to another.

[00:06:26] Speaker 01:
The theory remained the same, that the board did not correctly apply 3.156C.

[00:06:31] Speaker 03:
I get that.

[00:06:35] Speaker 03:
I'm a little confused as to what relief you're asking for here.

[00:06:39] Speaker 03:
Because again, I know you full well understand this is a acute case, where generally what happens is you show some mistake of fact or some mistake of law that entitles you to a specific form of relief, usually benefits or something like.

[00:06:56] Speaker 03:
I don't understand what you're asking for here.

[00:06:59] Speaker 01:
Well, the relief that we're seeking is a remand with instructions to the Veterans Court to re-adjudicate this under the proper interpretation

[00:07:08] Speaker 01:
of the legal principles under 3.156C.

[00:07:12] Speaker 03:
They did not rely upon the correct... Okay, so even if they did that, here's my problem.

[00:07:19] Speaker 03:
There's already a decision out there under three point one five six see that even with the newly associated service records the effective date is Let me look to make sure I get this right September 2003 and that's based upon that being the first diagnosis of PTSD in the record that's correct and in a queue place and

[00:07:45] Speaker 03:
We look at the record, don't we?

[00:07:47] Speaker 03:
So, even if we send it back, the board can't go beyond the record in a Q case.

[00:07:52] Speaker 03:
No, they're going to look at the record and they're going to have the same fact finding and that this is the earliest.

[00:08:01] Speaker 03:
Diagnosis of onset of that may be wrong, but that's what we have in the record.

[00:08:06] Speaker 03:
So, what effective date can he get earlier than September 2003?

[00:08:11] Speaker 01:
It's not a question of getting an earlier effective date.

[00:08:14] Speaker 01:
It's a question of getting the benefit of the Secretary's regulation.

[00:08:18] Speaker 01:
The Secretary's regulation under 3.156C is fundamentally different than the Secretary's regulation under 3.156A.

[00:08:27] Speaker 01:
And this case was only adjudicated under A. It was never adjudicated under C. Sure.

[00:08:33] Speaker 03:
I mean, I fully follow your argument.

[00:08:36] Speaker 03:
I think you might have a different result if we were in a direct review case.

[00:08:39] Speaker 03:
But again, given that in a Q case, we can't go beyond the already existing record, what's going to happen that will change, even if you get the benefit of a different level review under 3.156C, when you have

[00:08:54] Speaker 03:
In the record, the only diagnosis of PTSD is September 2003.

[00:08:59] Speaker 01:
Because it is not the diagnosis that controls the outcome.

[00:09:04] Speaker 01:
What controls the outcome is the reconsideration that is mandated by 3.156C, a reconsideration that was never afforded to Mr. George.

[00:09:15] Speaker 03:
That, to me, doesn't tell me anything about what relief you're expecting to get.

[00:09:20] Speaker 03:
Based on that reconsideration, because this is all about effective date, right?

[00:09:24] Speaker 03:
He has a service connection now for PTSD.

[00:09:30] Speaker 03:
So what are you trying to get from this reconsideration?

[00:09:34] Speaker 01:
No, Your Honor, I am not.

[00:09:36] Speaker 01:
That certainly is Mr. George's ultimate goal.

[00:09:38] Speaker 01:
Make no mistake about that.

[00:09:41] Speaker 01:
The relief that Mr. George seeks is the relief that he was entitled to in 2007.

[00:09:47] Speaker 03:
Right, but what I'm asking is, if we give you that relief, when you go back to the board, what are you going to do and what are you going to argue?

[00:09:55] Speaker 01:
I'm going to argue to the board that the board erred in 2014 when it remanded without instructing the agency of original jurisdiction to reconsider.

[00:10:06] Speaker 01:
The remand order that they made in 2013 was to simply get a psychiatric opinion about the date of onset.

[00:10:14] Speaker 01:
That is relevant under 3.156A.

[00:10:15] Speaker 03:
And so when you make that argument, what are you going to tell the board to do as a result of that error?

[00:10:21] Speaker 01:
All the board has to do is to vacate the 2014 decision and order the agency of original jurisdiction in accordance with 3.156C to reconsider, to adjudicate anew the original claim in 1996, or excuse me, 1997 of Mr. George.

[00:10:41] Speaker 01:
You mean based on an entirely new record?

[00:10:44] Speaker 01:
No, based upon the record as it existed in

[00:10:48] Speaker 01:
2007 when the VA received the Supplemental Service Department.

[00:10:54] Speaker 03:
Well, and that's the problem.

[00:10:55] Speaker 03:
I don't see, is there a document you can point me to in the existing record that would establish anything to show that he has an earlier diagnosis of PTSD?

[00:11:07] Speaker 03:
We're going to go through all this process and come back around to the August 2007 VA diagnosis of Mr. George with PTSD that dates it back to October 2003, for which they somehow gave him effective date back to September 2003.

[00:11:23] Speaker 01:
That diagnosis was made based upon a adjudication under 3.156A.

[00:11:31] Speaker 01:
The earliest possible effective date under 3.156A was the date of the original claim.

[00:11:38] Speaker 01:
That remand served no purpose under 3.156C because 3.156C requires an adjudication effective in 2007.

[00:11:50] Speaker 01:
And in 2007, they vitiated the finality of the

[00:11:56] Speaker 01:
a 1998 decision that made the original denial.

[00:12:00] Speaker 01:
That original denial was based upon the fact that he didn't meet the diagnostic criteria because he didn't have a verified stressor.

[00:12:08] Speaker 01:
The new service department records verified the stressor.

[00:12:11] Speaker 03:
But the stressor stuff is beside the point.

[00:12:14] Speaker 03:
There's still no diagnosis of the underlying condition.

[00:12:19] Speaker 03:
except for the diagnosis that puts it in 2003.

[00:12:22] Speaker 01:
And there was no diagnosis because of the administrative error made by the VA.

[00:12:27] Speaker 03:
Look, I get you.

[00:12:28] Speaker 03:
If we were on direct review, you might have an avenue to extend this all back with a new medical evaluation that might predate it past 2003.

[00:12:36] Speaker 03:
But in a Q case, we can't go beyond the record.

[00:12:39] Speaker 03:
You keep saying all this stuff, but I don't see a path for you based upon the record to get it back past 2003.

[00:12:47] Speaker 01:
Your Honor, if your analysis is correct, then there is no effective remedy for Mr. George.

[00:12:55] Speaker 01:
Mr. George has no remedy under your interpretation of Q. Now, I suppose the other possibility.

[00:13:02] Speaker 03:
But there are some types of errors that aren't remediable under Q. A failure of the duty to assist, as you know, can't be cured under Q. Process things that don't change the outcome

[00:13:15] Speaker 03:
are not remediable under Q. They may be remediable under a direct review.

[00:13:19] Speaker 03:
That's the point.

[00:13:20] Speaker 03:
Q is a collateral attack on finality, and it has to be very narrowly expressed, and it has to dictate a specific outcome.

[00:13:27] Speaker 03:
So you're right.

[00:13:28] Speaker 03:
It may be that the error here, if there is an error in the way the VA applied 3.156C, is not remediable.

[00:13:36] Speaker 03:
But that's a result of the Q standard, not of the VA's interpretation, isn't it?

[00:13:41] Speaker 01:
No, Your Honor, because 3.156C, as interpreted by the Secretary when he published the amendment in 2006 to this regulation, described it as remedial, described it as entire

[00:13:56] Speaker 01:
that the purpose was to correct the administrative error.

[00:14:00] Speaker 01:
This court, by adopting this view, by adopting the contrary view, precludes the implementation of the intent of the secretary in 3.156C.

[00:14:09] Speaker 01:
3.156C in this case was never used.

[00:14:14] Speaker 01:
All that was used was 3.156A.

[00:14:16] Speaker 02:
the attempts to pretend that 3.156... I guess I'm a little lost, because I don't know what tool you want the VA and the board to pick up and use that they didn't use before.

[00:14:28] Speaker 02:
I mean, you're saying that, oh, this was all done under regulation X, it should have been done under regulation Y, and so I want it done under regulation Y. And I'm trying to locate what's the difference here.

[00:14:39] Speaker 02:
The difference is... What did they not do that they were supposed to do specifically?

[00:14:43] Speaker 02:
And don't say a regulation name to me.

[00:14:45] Speaker 01:
that they failed to reconsider when they received the relevant service department records in 2007.

[00:14:53] Speaker 01:
They proceeded with a reopening.

[00:14:56] Speaker 01:
A reopening is a different- What if I disagree?

[00:14:58] Speaker 02:
What if I say, like the 2013 BVA remand said, I want the VA to look at every possible record that exists.

[00:15:07] Speaker 02:
I want you to ask Mr. George for all records he might have.

[00:15:10] Speaker 02:
I want this retroactive medical exam to take place.

[00:15:14] Speaker 02:
All of that came in, anything that was available came in, and there was an evaluation.

[00:15:20] Speaker 02:
You don't want to call that a reconsideration.

[00:15:23] Speaker 02:
I get that, but I don't understand why, as a practical functional matter, there wasn't an actual re-evaluation, a reconsideration of this particular veteran's possibility of having had onset of PTSD before 2003 in that circumstance.

[00:15:38] Speaker 01:
Because 3.156C was not created by the secretary.

[00:15:43] Speaker 02:
What didn't happen that was supposed to happen as a practical functional matter?

[00:15:46] Speaker 01:
An adjudication under 3.156C of the original claim.

[00:15:50] Speaker 02:
Why wasn't what happened an adjudication?

[00:15:53] Speaker 02:
Because there was an evaluation of all these records.

[00:15:55] Speaker 02:
That 2007 report about the stressor, there was the medical retrospective exam.

[00:16:03] Speaker 02:
They took all that into account.

[00:16:05] Speaker 02:
They made a certain finding.

[00:16:06] Speaker 02:
Why is that not an adjudication?

[00:16:08] Speaker 02:
What more needed to be done to then clear the bar to be an adjudication?

[00:16:11] Speaker 01:
Because they didn't do it in the first instance.

[00:16:14] Speaker 01:
And they didn't do it correctly when they attempted to apply 3.156z after they failed to apply it.

[00:16:22] Speaker 01:
The board in its 2013 remand never mentioned 3.156C.

[00:16:26] Speaker 02:
If they had mentioned 3.156C, then it would make all the difference.

[00:16:31] Speaker 01:
Because had they mentioned it, then what would have been re-adjudicated, what would have been reconsidered, would have been the 1997 claim.

[00:16:39] Speaker 01:
The 1997 claim has never been reconsidered.

[00:16:43] Speaker 01:
The 1997 claim was not reconsidered.

[00:16:46] Speaker 01:
What was reconsidered was the onset date of the award of the diagnosis.

[00:16:52] Speaker 00:
You're almost out of your complete time.

[00:16:54] Speaker 00:
I'll restore some of your rebuttal time.

[00:17:02] Speaker 04:
May it please the court, at appendix 97 and 98 is the 2013 remand order.

[00:17:08] Speaker 04:
And they specifically, paragraph by paragraph, lay out everything that Your Honor Judge Chen just noted should be done under reconsideration.

[00:17:17] Speaker 04:
What's the appendix numbers again?

[00:17:19] Speaker 04:
97 to 98 is the specific part of the remand order in 2013, where the board directed the regional office to obtain all additional evidence

[00:17:32] Speaker 04:
get a retrospective medical opinion.

[00:17:34] Speaker 04:
And then in paragraph 5, after ensuring that the record is complete, the claim should be re-adjudicated.

[00:17:40] Speaker 00:
So even if we were to remand, is there anything different that the board could do?

[00:17:45] Speaker 04:
No.

[00:17:46] Speaker 04:
Your Honor, the best I can suss out from the blue brief is that whereas the focus previously used to be on the lay testimony, Mr. George is hoping that additional development, additional duty to assist work might

[00:18:02] Speaker 04:
provide some better foundation for the lay testimony of PTSD going back to 1997.

[00:18:08] Speaker 03:
You mean new?

[00:18:10] Speaker 04:
Yes, Your Honor.

[00:18:10] Speaker 03:
I thought your friend just agreed that it had to be on the record.

[00:18:14] Speaker 04:
He did when pressed by Your Honor.

[00:18:17] Speaker 04:
But in the brief, that's the only thing that seems to be identified as what could be different if it was remanded again.

[00:18:24] Speaker 04:
And so that's the reason why we note that that allegation of Q

[00:18:28] Speaker 04:
is a breach of the duty to assist, which cannot be cue under Cook, obviously.

[00:18:32] Speaker 02:
As I understand it, he seems to be arguing that the 1997 claim needed to be reconsidered.

[00:18:40] Speaker 02:
And that didn't happen.

[00:18:41] Speaker 02:
All that happened was trying to figure out whether the date of 2003 should be moved back to 1997.

[00:18:49] Speaker 02:
And that's some kind of important distinction with a difference.

[00:18:53] Speaker 04:
I'm not sure I understand I mean in the 2014 board decision they viewed 1997 as the date of claim which they're required to under 3.156 c3 they looked at all the evidence including the retrospective medical opinion to determine whether or not there was any evidence of PTSD prior to the date that he had previously been assigned they found that there wasn't any and so there was no basis under c4 there's no adequate medical support or

[00:19:20] Speaker 04:
for a retroactive disability evaluation back to 1997.

[00:19:24] Speaker 04:
It's unclear what additional reconsideration of the 1997 claim could have taken place.

[00:19:30] Speaker 04:
I think by trying to characterize the remand.

[00:19:35] Speaker 03:
Except further assistance.

[00:19:37] Speaker 03:
Further assistance, sure.

[00:19:38] Speaker 03:
I mean, this is an interesting issue if it had been a direct review.

[00:19:43] Speaker 03:
And he may not be right about his arguments about what 3.156C requires us to, but that's what I

[00:19:53] Speaker 03:
get that once you newly associate a previous service record that should have been associated in the first place, you don't just look back and do new medical examinations.

[00:20:04] Speaker 03:
You basically start over, which could require new medical evidence or the like.

[00:20:12] Speaker 04:
Except that in this instance, they did get a medical opinion after the newly associated service department records led to the confirmation of the in-service dresser.

[00:20:20] Speaker 04:
And that's what the board found the duty to assist had been satisfied here.

[00:20:23] Speaker 04:
So although it touches on possibly interesting issues.

[00:20:26] Speaker 02:
Is that the 2007 VA exam you're talking about?

[00:20:29] Speaker 04:
Yes, Your Honor.

[00:20:30] Speaker 04:
That is October 2007.

[00:20:35] Speaker 04:
It's at appendix 42 to 46.

[00:20:37] Speaker 04:
So they did additional work to reconsider the merits

[00:20:41] Speaker 04:
which is what's required under C1.

[00:20:44] Speaker 04:
And even after.

[00:20:44] Speaker 03:
Oh, but that's not a new medical opinion after the 3.156C remand.

[00:20:50] Speaker 03:
That's before.

[00:20:51] Speaker 04:
Right.

[00:20:51] Speaker 04:
I'm saying that.

[00:20:51] Speaker 03:
I guess what I'm thinking is his argument, once you get the 3.156C remand, you get another new medical opinion.

[00:21:00] Speaker 04:
But they did, right?

[00:21:01] Speaker 04:
They got the retrospective medical opinion following the 2013

[00:21:05] Speaker 04:
remand where the VA psychologist in April of 2013 said he couldn't.

[00:21:11] Speaker 04:
And they said to him, please submit whatever additional records may exist to support you.

[00:21:16] Speaker 03:
I don't need to go down this rabbit hole too much because I think even if that were permissible, it would only be permissible

[00:21:21] Speaker 03:
in a direct review, not in a Q case.

[00:21:24] Speaker 03:
Can I ask you, I am a little curious about your response to this Andre argument and about what exactly is the level of specificity you need to raise in a revision motion.

[00:21:37] Speaker 04:
Right.

[00:21:38] Speaker 04:
Well, I mean, the board's regulations say it needs to be specific allegations required.

[00:21:42] Speaker 04:
The motion must set, this is 38 CFR 28.1404.

[00:21:48] Speaker 04:
And it must be set forth clearly and specifically the alleged clear and unmistakable error or errors, the fact or law, and why the result would have been manifestly different.

[00:21:58] Speaker 04:
Mr. Carpenter recognized the requirements of that, and Andre, in providing a very specific set of errors with respect to the treatment of the lay testimony.

[00:22:07] Speaker 04:
In his reply here, he says that his general allegation was inextricably intertwined within that.

[00:22:13] Speaker 04:
There's no precedential support for that sort of backing out a general allegation from specific allegations.

[00:22:20] Speaker 04:
I can't think of a case where that sort of argument has even been addressed, because usually it's a generic allegation of Q&A.

[00:22:26] Speaker 03:
And is it clear that this is a jurisdictional requirement and not just an exhaustion requirement?

[00:22:31] Speaker 04:
Well, I think it is clear, because 7252 says the Veterans Court can't review

[00:22:36] Speaker 04:
decisions that they can only review decisions by the board.

[00:22:40] Speaker 04:
And if the board was never tasked with deciding whether 3.156c was applied at all, which appears to be what the Q allegation is here.

[00:22:49] Speaker 04:
And in fact, in his specific Q allegations, he says, when 3.156c was applied, it was applied incorrectly with respect to the lay testimony.

[00:22:58] Speaker 04:
And the standard was used.

[00:22:59] Speaker 04:
The board never made a decision on this

[00:23:02] Speaker 04:
the question that the Veterans Court was tasked with facing.

[00:23:04] Speaker 04:
And so 7252 should have precluded the Veterans Court from considering that question.

[00:23:09] Speaker 04:
So that is jurisdictional.

[00:23:10] Speaker 03:
So as a practical matter, did he raise any of his original Q arguments to the Veterans Court, and did they consider them?

[00:23:20] Speaker 04:
I don't believe so, Your Honor.

[00:23:21] Speaker 04:
The record doesn't have his brief to the Veterans Court.

[00:23:25] Speaker 04:
But certainly, there's no discussion of the standards that were applied by the board to the lay testimony.

[00:23:32] Speaker 03:
The stuff about lay testimony and the heightened standard for medical.

[00:23:35] Speaker 03:
Right.

[00:23:36] Speaker 04:
None of that's in the Veterans Court.

[00:23:37] Speaker 04:
So they clearly view this as just the question that's currently up.

[00:23:40] Speaker 03:
So in your view, then, the relief you're asking for is for us to vacate and remand the Veterans Court decision and order them to dismiss it for lack of jurisdiction rather than us dismissing it for lack of jurisdiction?

[00:23:52] Speaker 04:
I think that would be proper, Your Honor.

[00:23:53] Speaker 04:
I hate to do it in the sense that there's not a ton of precedent that really spells out all the various parts of 3.156, and I don't think there's any error in the discussion in the Veterans Court of what's required under 3.156, but I think the right remedy would be to vacate a room.

[00:24:10] Speaker 04:
with instructions, because the Veterans Court.

[00:24:12] Speaker 03:
And is that because, again, because it's a jurisdictional requirement, so the Veterans Court couldn't waive the right or the responsibility to raise it in a key motion?

[00:24:21] Speaker 03:
That's right, Your Honor.

[00:24:23] Speaker 02:
So go ahead.

[00:24:24] Speaker 02:
Why didn't the VA raise this jurisdictional issue to the Veterans Court?

[00:24:28] Speaker 04:
I don't have an answer.

[00:24:29] Speaker 04:
I think they just missed that it wasn't the specific allegation that had been made.

[00:24:34] Speaker 04:
But again, subject matter jurisdiction can't be waived.

[00:24:36] Speaker 00:
If we vacate and remand, would we have to make some sort of interpretation of our opinion in Andre?

[00:24:43] Speaker 04:
I think yes, to the extent that I don't think it would be an interpretation.

[00:24:47] Speaker 04:
It would be an application.

[00:24:49] Speaker 04:
Whereas here, there were three specific allegations of Q. A different allegation was raised here and under Andre.

[00:24:56] Speaker 04:
There can't be a new cue claim raised later on if you don't disagree that we could outright dismiss I mean it is certainly within the court's power to dismiss.

[00:25:06] Speaker 04:
Yes, your honor Unless the court has any further questions, we'd ask the court to vacate and we have your argument.

[00:25:12] Speaker 01:
Thank you Mr. Carpenter are we story back to two minutes if I could deal with one substantive matter and then matter dealing with the remedy

[00:25:22] Speaker 01:
I'd like to direct the court's attention to the language of the original version of 3.156c.

[00:25:27] Speaker 01:
In the original version of 3.156c, it does not refer to claim.

[00:25:33] Speaker 01:
What it says is that the former decision will be reconsidered by the adjudicating agency of original jurisdiction.

[00:25:42] Speaker 01:
That term decision or former decision was taken out of the amendment when it was amended and the reference was made only to claim.

[00:25:50] Speaker 01:
Our assertion is that the remand in 2013 never addressed the re-adjudication of the 1998 decision, which really requires, under the new language, the re-adjudication of the 1997 claim.

[00:26:05] Speaker 01:
And notwithstanding the reference by the government to the text of that remand order, there is no specific reference to re-adjudicating the 1997 claim.

[00:26:17] Speaker 01:
Having said that,

[00:26:18] Speaker 01:
Assuming that the court is going to dispose of this matter without reaching the merits, I would urge on Mr. George's behalf that this court take up the government's argument and send this back as the government suggests, because in so doing, by vitiating the decision of the board, it allows for Mr. George, in my view,

[00:26:47] Speaker 01:
proceed further in this matter based upon the fact that the matter was never reviewed and affirmed by the court.

[00:26:55] Speaker 03:
So you could raise a new Q claim.

[00:26:57] Speaker 03:
That's correct.

[00:26:57] Speaker 03:
Preserving this challenge.

[00:26:58] Speaker 01:
That's correct.

[00:27:00] Speaker 01:
Thank you very much, Your Honor.

[00:27:02] Speaker 01:
Thank you.