[00:00:00] Speaker 04:
Your argument next to number 19-1769, Sellers versus Wilkie.

[00:00:05] Speaker 04:
Mr. Pelkey.

[00:00:06] Speaker 05:
Thank you, Your Honor.

[00:00:07] Speaker 05:
If it may please the court, I'd like to begin by thanking everyone in the clerk's office for continuing to set up the opportunities for a oral argument telephonically during the current situation.

[00:00:18] Speaker 05:
We're here today.

[00:00:19] Speaker 05:
The case presents in an interesting form because neither party here is defending the veteran court's decision as it was read.

[00:00:28] Speaker 05:
And that's because the court's decision, it cites to no law for what it proposes, the new rule it proposes, and that new rule indeed has no basis in any law or regulation that applies to the VA.

[00:00:45] Speaker 05:
So in the case, Mr. Sellers in 1996, he applied for benefits.

[00:00:49] Speaker 05:
He submitted the formal form 526 as required in the regulations promulgated under

[00:00:57] Speaker 05:
5101 and he identified five specific physical maladies and he did that in the section of the form that asks to the claimant to identify the disabilities that form the basics of the claim.

[00:01:12] Speaker 05:
In the box 40 he wrote that he was seeking SC or service connection for disabilities and service.

[00:01:23] Speaker 05:
The Veterans Court took that general statement

[00:01:27] Speaker 05:
as incomplete or insufficient claim for benefits and opined and ruled that the VA had the obligation to search the records for reasonably identifiable disabilities to potentially cure, that's the language that it uses, to cure that general statement and that

[00:01:54] Speaker 05:
requirement on VA to take what is a complete form as submitted.

[00:02:01] Speaker 05:
I don't think there can be any contention here that what Mr. Sellers put in in support of his claim did not qualify as a complete form 526.

[00:02:10] Speaker 04:
Mr. Palky, let me ask you a question which is a little off point but I think relevant.

[00:02:17] Speaker 04:
Sure.

[00:02:17] Speaker 04:
And that is suppose a veteran is thinking of making a claim and

[00:02:24] Speaker 04:
He's not sure whether he's going to be able to establish service connection.

[00:02:29] Speaker 04:
And he asks the VA to supply him copies of his service records.

[00:02:35] Speaker 04:
Does he have the opportunity to secure those in a prompt manner?

[00:02:40] Speaker 05:
Yes, Your Honor, I think he does.

[00:02:41] Speaker 05:
And so if we look at the, we can look at the regulations that exist at the time of Mr. Sellers and for a long time before and after.

[00:02:51] Speaker 05:
and this court's case law, for instance, in the Fleshman case, where if the veteran reaches out to VA with this manner of query, as Your Honor described, I think the regulations would either view it as potentially an informal claim, and then that would trigger the responses that go along with that, or even if it were made in a Form 526, so for instance, if the veteran didn't

[00:03:18] Speaker 04:
You're confusing me.

[00:03:21] Speaker 04:
I'm asking, even before he submits a claim, he's thinking, I want to get the information that's necessary for me to figure out whether I have a claim here.

[00:03:32] Speaker 04:
He says, I'd like the VA to supply me with a copy of my service records.

[00:03:38] Speaker 04:
Do the regulations provide that the VA will supply those records?

[00:03:46] Speaker 05:
I think they do in that that would be most likely maybe considered to be an informal, the beginning of the informal claim process.

[00:03:54] Speaker 05:
So that would begin the process, excuse me, of bringing that system.

[00:04:00] Speaker 03:
I think this is Judge Clever.

[00:04:03] Speaker 03:
We need to be very careful here with what we're saying about what might trigger an informal claim or what an informal claim is.

[00:04:12] Speaker 03:
What you just said suggested to me that you're taking the position, the department would say that if a veteran simply walked into the RO, sat down and said, by the way, may I please have all my medical records?

[00:04:28] Speaker 03:
Now, I don't believe you're trying to say that would be treated as an informal claim for benefits.

[00:04:34] Speaker 05:
Oh, no, Your Honor.

[00:04:34] Speaker 05:
I was understanding the question to be if the veteran came in

[00:04:38] Speaker 03:
I think Judge Dyke was simply asking the question whether is there a rule, yes or no, that provides that if a veteran walks into an RO, sits down and says, by the way, may I please have a copy of my medical records?

[00:04:52] Speaker 03:
Does the RO have to give them to me, yes or no?

[00:04:56] Speaker 05:
No.

[00:04:57] Speaker 03:
No.

[00:04:58] Speaker 03:
No?

[00:04:58] Speaker 05:
I don't believe so.

[00:04:59] Speaker 05:
Everything is connected to a claim within the claims process.

[00:05:04] Speaker 05:
And frankly, I don't know if a veteran submitted

[00:05:07] Speaker 05:
some form of request saying, I want all my records.

[00:05:11] Speaker 05:
I don't know offhand, out of the claims context, what regulation might govern there.

[00:05:20] Speaker 04:
Would you supply a supplemental letter addressing that unless my colleagues don't want it?

[00:05:28] Speaker 04:
I would be interested in knowing whether a veteran has that right under the regulations.

[00:05:34] Speaker 01:
This is Judge Hughes.

[00:05:35] Speaker 01:
Could you also check and see if the veteran has a right to get those service military records from the actual branch of service he or she served in rather than the VA who might not initially have them?

[00:05:50] Speaker 05:
Right.

[00:05:51] Speaker 05:
And that's one of the issues that I'm thinking of, Your Honor, is that, you know, what may or may not be directly in VA's possession when such a request is made?

[00:06:02] Speaker 05:
as Your Honor mentioned, it might implicate the source branches for any... Just to follow up on this, when does... I'm sorry, this is Judge Hughes again.

[00:06:12] Speaker 01:
When does the duty to assist kick in?

[00:06:14] Speaker 01:
Is that when a claim, informal or formal, otherwise is made?

[00:06:18] Speaker 05:
I believe that's correct, Your Honor.

[00:06:20] Speaker 01:
It's a duty... So, once a claim, informal or formal, is made, then the VA would have an obligation to obtain all relevant service records.

[00:06:32] Speaker 01:
Yes, sir.

[00:06:33] Speaker 01:
That's correct.

[00:06:34] Speaker 01:
Yes, sir.

[00:06:37] Speaker 03:
OK.

[00:06:37] Speaker 03:
Could I, as a Judge Cleverger, could I come back to the specificity of this case for a moment?

[00:06:42] Speaker 03:
Unless I'm mistaken, this case presents us with an opportunity to answer the question of what degree of specificity is required on a form, on the particular form you named.

[00:06:56] Speaker 03:
what degree of specificity is required in a 526 form in order to raise a formal claim.

[00:07:04] Speaker 05:
That's correct, Your Honor.

[00:07:05] Speaker 05:
As both parties have stated, we're outside the informal claim regime.

[00:07:10] Speaker 03:
That's why I wanted to bring it back.

[00:07:12] Speaker 03:
It seems to me that what we're being, first, that we, regardless of how the CABC seemed to treat what was in box 40,

[00:07:23] Speaker 03:
Mr. Seller's contention is that Box 40 contains his formal claim for relief.

[00:07:30] Speaker 05:
That's correct, Your Honor.

[00:07:32] Speaker 03:
And so we need to decide is that sufficient, yes or no.

[00:07:35] Speaker 03:
If it's insufficient, what is your view of what degree of specificity is required?

[00:07:43] Speaker 05:
Your Honor, as we explained at length in the briefs, and I think one can also, it pulls directly out of the regulations.

[00:07:52] Speaker 05:
the form that a claim must take, 526, has within it specific space to identify the disability.

[00:08:04] Speaker 03:
And... Okay.

[00:08:05] Speaker 03:
Let me ask this question.

[00:08:07] Speaker 03:
Let's assume that in that space, which I think you mean is box 17 and box 18, 19, where specific injuries are identified, is that correct?

[00:08:19] Speaker 05:
Yeah, so... Okay.

[00:08:21] Speaker 03:
So let's assume...

[00:08:22] Speaker 03:
Let's assume that, and go back to the Shay case, and let's assume that Mrs. Shay, when she supplied the RO with the information that became the basis for the informal claim, let's assume Ms.

[00:08:36] Speaker 03:
Shay had simply written on the formal form in block 17 what she told the RO.

[00:08:44] Speaker 03:
Would that have been sufficient to have a formal claim?

[00:08:51] Speaker 05:
No, and I think what would happen, Your Honor, is it would trigger right under the statutes and, you know, as described in the Fletchering case as well, the form would bounce back to Ms.

[00:09:05] Speaker 05:
Shea with designation to, you know, you need to, describing what information is missing and that it needs to be provided, I believe, within a year in order to lock in the claim.

[00:09:19] Speaker 05:
So there already is.

[00:09:20] Speaker 03:
Why isn't it sufficient in a formal claim in Block 17, nature of the sickness, degree, or illness is made someone to come in and say, I've got, as she said, I'm having trouble remembering things.

[00:09:34] Speaker 03:
I've got head problems.

[00:09:35] Speaker 03:
I live with this accident back and forth.

[00:09:38] Speaker 03:
The accident was on such and such a date.

[00:09:42] Speaker 03:
Why isn't that sufficient?

[00:09:44] Speaker 05:
Oh, I'm sorry, Your Honor.

[00:09:45] Speaker 05:
That, I think, would be sufficient.

[00:09:47] Speaker 05:
I thought you were referring to her in the Shea case designation of hospital records without more.

[00:09:53] Speaker 05:
For instance, if she had put in box 17.

[00:09:56] Speaker 03:
No, no, no, no, no.

[00:09:58] Speaker 03:
Shea turns both on what she said as well as our identification of the hospital records.

[00:10:04] Speaker 03:
Assume, for example, that in box 17, Shea had written what I just said about her head problem and the rest.

[00:10:12] Speaker 03:
And she said, by the way, I'm aware of a medical record that would support this, and she cited the record.

[00:10:19] Speaker 03:
And that was all she said in Block 17.

[00:10:22] Speaker 03:
Would that be a sufficient formal claim?

[00:10:24] Speaker 05:
Yes, I think it would, Your Honor.

[00:10:26] Speaker 05:
And we discussed that in our case, in our brief.

[00:10:28] Speaker 05:
Excuse me.

[00:10:29] Speaker 05:
Sophisticated.

[00:10:32] Speaker 05:
I'll finish my answer here, and then I can reserve the time following that.

[00:10:35] Speaker 05:
The level of specificity that's required in the form by VA practice is very low.

[00:10:41] Speaker 05:
So it can be identifying a body part.

[00:10:43] Speaker 05:
It can be identifying a problem like a memory problem.

[00:10:47] Speaker 03:
It just has to be something so that VA... Would it be your position that the level of specificity required to trigger an informal claim is the same level of specificity that would suffice in a formal claim?

[00:11:02] Speaker 05:
Historically, yes, and that has been VA's position.

[00:11:05] Speaker 05:
Of course, now the regulations have been changed as of, I believe, 2015 with the intervention.

[00:11:11] Speaker 04:
Is that a yes or no?

[00:11:13] Speaker 05:
Yes.

[00:11:15] Speaker 05:
In the time period we're speaking of, it would be the same.

[00:11:18] Speaker 05:
There are no longer informal claims.

[00:11:21] Speaker 04:
Wait a moment.

[00:11:22] Speaker 04:
Under the 2015 regulations, would it be sufficient if the formal claim

[00:11:30] Speaker 04:
had the same level of specificity that existed in the Shea case?

[00:11:36] Speaker 05:
I believe so because the general as the court knows and is discussed in the veteran justice group decision and legislative history there behind 3.16 goes a lot into the historical treatment and the continuity

[00:11:56] Speaker 05:
and the treatment of claims and how they're read and interpreted.

[00:12:00] Speaker 05:
And that 3.160 does not represent a break from that continuity.

[00:12:05] Speaker 05:
So I think that the expansive reading of claims would continue with the new forms.

[00:12:12] Speaker 05:
If a veteran put down body parts and things like that describing the difficulty that he or she was having, that that would constitute the formal claim and then enable the veteran to move forward in the process.

[00:12:28] Speaker 04:
Okay, unless there are further questions, we'll hear from Mr. Carpenter.

[00:12:32] Speaker 04:
Any further questions?

[00:12:34] Speaker 04:
No.

[00:12:35] Speaker 04:
Okay.

[00:12:37] Speaker 04:
Mr. Carpenter.

[00:12:44] Speaker 00:
Mr. Carpenter.

[00:12:48] Speaker 00:
I'm sorry, I had the mute button on, I apologize.

[00:12:53] Speaker 00:
This is Kent Carpenter appearing on behalf of Robert Sellers.

[00:12:58] Speaker 00:
If I could begin by trying to address Judge Dike's question relative to obtaining records, I believe that prior to the filing of an application, there is no VA regulation that provides for any obligation on the part of the secretary to provide either service records or treatment records

[00:13:25] Speaker 00:
unless those records are already in an established claim.

[00:13:30] Speaker 04:
What about service departments?

[00:13:32] Speaker 00:
Do they have the obligation to supply such records?

[00:13:36] Speaker 00:
No, they do not until such time as a claim has been filed.

[00:13:46] Speaker 00:
Once a claim has been filed, that's opened up in the regional office to be adjudicated.

[00:13:53] Speaker 00:
And once the claim has been filed,

[00:13:55] Speaker 00:
under 38 USC 5103, the duty to assist then triggers to obtain all relevant records, including service department records.

[00:14:09] Speaker 03:
Mr. Carpenter, it's Judge Cleverger.

[00:14:10] Speaker 03:
You began your response in response to Judge Dye's question by sending prior to the filing an application.

[00:14:17] Speaker 01:
That's correct.

[00:14:17] Speaker 03:
Did you mean by that filing a formal claim as opposed to saying something that would be deemed an informal claim?

[00:14:26] Speaker 00:
Yes, Your Honor.

[00:14:28] Speaker 03:
So what happens when a veteran walks into the RO and makes an informal claim?

[00:14:38] Speaker 00:
Well, there are two answers to that.

[00:14:41] Speaker 00:
One has to do with the prior version of the regulation, which is at issue here.

[00:14:45] Speaker 00:
And I'll address that first.

[00:14:47] Speaker 00:
At the time that an informal claim is filed, the duty to assist does not trigger.

[00:14:55] Speaker 00:
What happened under the prior version is that the secretary specifically provided that in the event that a formal claim was presented that he would provide to the veteran or other claimant a VA form in order to initiate a formal claim and that he or she had one year to submit that formal claim and then that would trigger the duty to assist.

[00:15:24] Speaker 00:
From the time that the informal claim was filed until the time that a formal claim was filed, which had to be within that one year window, there is no duty to assist under the prior version of 3.155A.

[00:15:41] Speaker 00:
Now to address Judge Dyke's question relative to service records.

[00:15:45] Speaker 00:
Service records can be obtained by any veteran from the National Records Center from the National Archives, which is in St.

[00:15:53] Speaker 00:
Louis.

[00:15:54] Speaker 00:
The National Personnel Records Center will respond to any veteran to be provided their service records.

[00:16:02] Speaker 00:
They no longer have to go to the individual service departments.

[00:16:07] Speaker 00:
The service departments are supposed to, individual service departments are supposed to submit those to the National Personnel Records Center.

[00:16:17] Speaker 03:
Thank you.

[00:16:19] Speaker 00:
Okay.

[00:16:19] Speaker 00:
Now I'd like to address the question of

[00:16:23] Speaker 00:
the degree of specificity that Judge Clevenger spoke of.

[00:16:28] Speaker 00:
I agree that that is the central issue in this case, and I believe that the government's position is based upon their interpretation of the law as it applies to informal claims.

[00:16:44] Speaker 00:
Even though both parties agree that the informal claim is not what was at issue here,

[00:16:49] Speaker 00:
It is the case law related to the specificity question for an informal claim.

[00:16:57] Speaker 00:
It's Mr. Seller's position that there is no provision that requires specificity for a formal claim.

[00:17:06] Speaker 00:
And that is important to understand the distinction here because the claim being made in this case was a claim for compensation.

[00:17:17] Speaker 00:
What is filled out on the VA form 526 is to identify the diseases or injuries that were incurred in or aggravated during a period of service or were conditions that they believe entitled them to compensation because they have a post-service disability.

[00:17:41] Speaker 04:
So you're saying that if you put in that form, please see if I

[00:17:47] Speaker 04:
have a claim for service connection, you don't even have to identify the current disability or you do?

[00:17:56] Speaker 00:
Well, in order to reveal, you do have to respond to the particular number on that form with the information that the individual veteran has available to them.

[00:18:15] Speaker 00:
And the case law is clear that a veteran is not an expert and does not necessarily know the right verbiage to describe what their disability may or may not be.

[00:18:26] Speaker 04:
I'm not understanding what the answer is.

[00:18:28] Speaker 04:
Does the veteran have to say, I have a current disability and describe it as to what it is?

[00:18:37] Speaker 04:
on the formal claim form?

[00:18:40] Speaker 04:
Or can he just say, please look at my records and see if I have any claims?

[00:18:47] Speaker 00:
Well, box 17 in this case, which is in the record at page 140.

[00:18:54] Speaker 00:
137.

[00:18:55] Speaker 00:
137, that's correct.

[00:19:00] Speaker 00:
And that box is titled Nature of Sickness, Disease, or Injury

[00:19:05] Speaker 00:
for which this claim is made and the date that each began.

[00:19:09] Speaker 00:
And in this case, there is a right leg left knee.

[00:19:14] Speaker 03:
Right, right.

[00:19:16] Speaker 03:
Mr. Carpenter, let me interrupt.

[00:19:18] Speaker 03:
Judge Cleminger.

[00:19:19] Speaker 03:
Yes.

[00:19:20] Speaker 03:
Judge Dyck is asking you the question is that if Mr. Sellers had filed his 21-526 form in which he had filled out the box identifying himself and where he lived, but box 17 was

[00:19:34] Speaker 03:
was empty, and the other boxes relating to specific acts, they were empty.

[00:19:39] Speaker 03:
And all there was was box 40 saying, request service connection for disabilities occurring during active duty service.

[00:19:47] Speaker 03:
Would that have been a sufficient formal claim, yes or no?

[00:19:51] Speaker 00:
It would probably be considered technically to be an incomplete claim.

[00:19:56] Speaker 00:
But the secretary has the discretion.

[00:19:59] Speaker 03:
Aren't you saying in your case that it is sufficient to be a formal claim?

[00:20:05] Speaker 00:
I am saying in this case it is because Mr. Sellers provided enough information to identify that there were service medical records that showed an injury while in service.

[00:20:20] Speaker 04:
But it was a leg injury, right?

[00:20:22] Speaker 00:
That's correct, Your Honor.

[00:20:23] Speaker 00:
But that triggered the responsibility for the Secretary

[00:20:28] Speaker 00:
to obtain all of his service department records.

[00:20:32] Speaker 04:
OK.

[00:20:33] Speaker 04:
So, Jessica, I can understand your position.

[00:20:34] Speaker 04:
You're saying as long as the veteran identifies some specific disability on the form, that's sufficient.

[00:20:43] Speaker 04:
But he does have to identify some disability on the form.

[00:20:48] Speaker 04:
But once he does that, the veteran's administration has the obligation to see if there are any other disabilities related or unrelated

[00:20:56] Speaker 04:
supported by the medical records.

[00:20:58] Speaker 04:
Is that your theory?

[00:21:00] Speaker 04:
That is correct, your honor.

[00:21:02] Speaker 01:
Mr. Carpenter?

[00:21:03] Speaker 01:
Sorry, this is Judge Hughes.

[00:21:04] Speaker 01:
Can I just modify that hypothetical a little bit?

[00:21:07] Speaker 01:
Suppose instead of the detail he has here in boxes 12 and 17 describing the leg injury, all he has is box 40.

[00:21:18] Speaker 01:
And in either box 12 or 17, he just says,

[00:21:22] Speaker 01:
I have disabilities resulting from service because I was injured without any further description of either the nature of the disability or the injury.

[00:21:32] Speaker 01:
Is that specific?

[00:21:35] Speaker 00:
Yes, Your Honor, I believe it is.

[00:21:37] Speaker 00:
And I think we need to stay away from the term specific.

[00:21:41] Speaker 00:
It is only necessary that the veteran identify an injury or disease that was incurred in service

[00:21:50] Speaker 00:
And there was no such identification.

[00:21:55] Speaker 00:
That's right.

[00:21:56] Speaker 00:
And I believe that it would be sufficient in Judge Fuse's hypothetical to trigger the provisions of the duty to assist that are specified at 38 CFR 3.103A, which require that.

[00:22:12] Speaker 03:
Mr. Carpenter, you're arguing out of both sides of your mouth.

[00:22:16] Speaker 03:
I don't understand what you're saying.

[00:22:18] Speaker 03:
In the first case, in answer to Judge Dyke, Judge Dyke said, must there be an identification of some disability, meaning a disability that has a name on it, not just a request.

[00:22:32] Speaker 00:
And I'm sorry, Your Honor.

[00:22:34] Speaker 03:
And you said yes.

[00:22:35] Speaker 03:
And then Judge Hughes said, you don't have a name on it.

[00:22:39] Speaker 03:
You just say, I request disability.

[00:22:42] Speaker 03:
You say that in the first form, and you say, I request

[00:22:46] Speaker 03:
service connection for disability in form 40, you're now saying that that's enough.

[00:22:51] Speaker 03:
Which is it?

[00:22:52] Speaker 00:
Well, Your Honor, it is both.

[00:22:54] Speaker 00:
I'm sorry, in responding to Judge Hughes' question, I didn't get a chance to finish my answer to Judge Dyke.

[00:23:02] Speaker 00:
Judge Dyke framed it in terms of identifying a disability.

[00:23:07] Speaker 00:
The veteran need not identify a disability.

[00:23:11] Speaker 00:
He need only identify that he was injured

[00:23:15] Speaker 00:
in service or suffered a disease or a pre-service injury or disease was aggravated during service.

[00:23:23] Speaker 00:
It is then incumbent upon the secretary to assist the veteran in developing facts pertinent to a claim for disability compensation.

[00:23:34] Speaker 00:
The claim here is for compensation.

[00:23:36] Speaker 00:
The claim here is not for any specific disability, although the veteran could and often does identify a specific disability.

[00:23:47] Speaker 00:
That difference is important here because if you make it too specific, then the secretary is able to do what the secretary is attempting to do here and say that we don't have the obligation to read the entire service medical records.

[00:24:04] Speaker 00:
And that is simply inconsistent with the provisions of their own regulation at 3.103A to develop facts pertinent to a claim for compensation and to render a decision that grants every benefit that can be supported in law.

[00:24:21] Speaker 00:
And that's why this court, as early as Roberson, has consistently held that a reasonably raised claim, either by the evidence or by what the veteran says

[00:24:34] Speaker 00:
either in his application or in later submissions has to be developed by the secretary.

[00:24:43] Speaker 00:
The secretary cannot simply ignore that as is the secretary's position here because it's not on the VA form 526.

[00:24:51] Speaker 00:
I'm sorry, was there a question?

[00:25:01] Speaker 00:
I'm sorry?

[00:25:02] Speaker 03:
I was following.

[00:25:04] Speaker 03:
You were following, but I was not letting you finish, Mr. Carpenter.

[00:25:08] Speaker 03:
So this time we let you finish.

[00:25:10] Speaker 00:
I'm sorry, Your Honor.

[00:25:15] Speaker 03:
I'm still connected.

[00:25:15] Speaker 03:
Are the other judges connected?

[00:25:17] Speaker 00:
Yes, I'm here.

[00:25:19] Speaker 00:
Oh, OK.

[00:25:21] Speaker 00:
And that is the important distinction here between the case law that preexisted the amendment to 3.155.

[00:25:31] Speaker 00:
as the government.

[00:25:31] Speaker 04:
Mr. Carpenter, I got to say I am completely unclear as to what your theory is.

[00:25:38] Speaker 04:
If you just left all the boxes blank, except you said, I'd like the secretary to see if I have any compensable service connection claims, that wouldn't be sufficient, right?

[00:25:54] Speaker 00:
I do not believe just that.

[00:26:00] Speaker 00:
would be sufficient.

[00:26:02] Speaker 04:
However, in addition to that, what does he have to say?

[00:26:10] Speaker 00:
I think he has to complete the form to the satisfaction of the secretary.

[00:26:17] Speaker 00:
The secretary may return an incomplete form to the veteran and not accept that form and say this is an

[00:26:26] Speaker 00:
incomplete form, and I will not act on your claim until you give me a completed form, or in the language of the statute, a substantially completed form.

[00:26:38] Speaker 00:
And it is in discretion.

[00:26:42] Speaker 03:
Yeah.

[00:26:42] Speaker 03:
Mr. Carpenter, I think the hypotheticals help us to sort of find out exactly where you are.

[00:26:49] Speaker 03:
So I'm taking you to say that I'm looking now at, can I just use block 7 in the form as the example where ordinarily specifics are supplied?

[00:26:59] Speaker 03:
Because box 40 says remarks, and the remarks are supposed to relate back to earlier blocks.

[00:27:07] Speaker 03:
So let's assume that in this case, your client had said in the initial block

[00:27:14] Speaker 03:
on the nature of the sickness or disease, he had said, I request service connection for disabilities occurring during active duty service.

[00:27:23] Speaker 03:
And then he then repeated the same language in Block 40.

[00:27:27] Speaker 03:
Do you believe that would be sufficient to have stated a formal claim?

[00:27:33] Speaker 00:
Yes, Your Honor.

[00:27:34] Speaker 00:
And I believe that that's what Mr. Sellers is saying.

[00:27:36] Speaker 03:
No, the reason why you're confusing us, Mr. Carpenter, is that your earlier response to Judge Black said,

[00:27:43] Speaker 03:
that the veteran, in order to trigger this duty to get in the records, has to identify some disability.

[00:27:49] Speaker 03:
Something, he has to say something happened.

[00:27:52] Speaker 03:
He has to point to something in service to the company.

[00:27:58] Speaker 00:
That's not what I was intending to say.

[00:28:02] Speaker 00:
What I was intending to say was he has to communicate something to the secretary to accept the form.

[00:28:09] Speaker 00:
The secretary's duty to assist does not

[00:28:12] Speaker 00:
start until the secretary has a complete or substantially completed form.

[00:28:20] Speaker 00:
And it is up to the secretary to decide.

[00:28:22] Speaker 00:
The secretary in this case made that decision that this was a sufficiently complete form that he could proceed.

[00:28:31] Speaker 00:
And once he did, the secretary's duty to assist continued and that duty to assist cannot be constrained

[00:28:39] Speaker 00:
as the government argues in this case, by the need for specificity of this psychiatric claim.

[00:28:48] Speaker 04:
Mr. Carpenter, Judge Hughes had a question, I think.

[00:28:53] Speaker 01:
Yeah, so if I understand your argument, if a veteran files this form, that that is sufficient to start the process.

[00:29:05] Speaker 02:
I'm sorry, Your Honor, Ken Carpenter has left the call.

[00:29:09] Speaker 02:
I am pausing the recording.

[00:29:12] Speaker 04:
Okay.

[00:29:16] Speaker 04:
Mr. Carpenter, are you there?

[00:29:17] Speaker 04:
I am here, Your Honor.

[00:29:20] Speaker 04:
I think Judge Hughes withdraws his question.

[00:29:24] Speaker 04:
Unless my colleagues have any further questions, I think we're finished with your side of the argument.

[00:29:31] Speaker 04:
All right, Your Honor.

[00:29:32] Speaker 04:
Hearing no further questions, we'll go to Mr. Pelkey for his rebuttal argument.

[00:29:39] Speaker 05:
Thank you, Your Honor.

[00:29:41] Speaker 01:
Mr. Polke, this is Judge Hughes.

[00:29:44] Speaker 01:
I'm not quite sure I understand the government's position on this, but I think you tried to say this during our opening.

[00:29:50] Speaker 01:
If this Form 526 contained the type of details that were present in Shea, in that it talked about certain disabilities and injuries and referenced certain medical records,

[00:30:07] Speaker 01:
If those medical records had contained additional diagnosis like PTSD or mental health thing, would that have been considered raising the claim so that this would have been the starting date for the payment of benefits?

[00:30:27] Speaker 05:
But not as a matter, necessarily as a matter of law.

[00:30:31] Speaker 05:
I mean, it would always fall to VA to potentially follow up if they thought there was some ambiguity.

[00:30:35] Speaker 04:
But the form... Mr. Pelkey, in answer to my exact question about Shea, you said that would be sufficient.

[00:30:42] Speaker 04:
You're now backtracking from that?

[00:30:44] Speaker 05:
No.

[00:30:45] Speaker 05:
I mean, my understanding of the question is that that would be sufficient to state the claim for what had been identified, meaning the

[00:30:53] Speaker 05:
the nature of the sickness, disease, or injury identified, which is what's asked for in Box 17.

[00:31:00] Speaker 05:
And so that statement and identifying the records would be the formal claim for that sickness or injury.

[00:31:12] Speaker 05:
The same situation for similar.

[00:31:15] Speaker 01:
I'm confused in why you answered no.

[00:31:21] Speaker 01:
Let me be clear.

[00:31:22] Speaker 01:
Maybe you didn't understand.

[00:31:23] Speaker 01:
what I was asking you.

[00:31:24] Speaker 01:
If this form had, in addition to what it had here, had also identified a medical record with specificity that included a diagnosis of mental health disease and that after the adjudication process, it was determined that that was service-connected, would that identification of the record without anything else identifying the disability be sufficient for this to be the starting date

[00:31:54] Speaker 05:
Okay, just to make sure I understand the question, so we don't want to drive by each other again.

[00:32:00] Speaker 05:
So in box 17, the claimant puts in the injury, the date that it occurred, the specific medical records, points to specific medical records and doctors, and then your honor mentioned an adjudication that finds mental health

[00:32:22] Speaker 05:
issues, would that then date from the form?

[00:32:26] Speaker 01:
Yes.

[00:32:26] Speaker 01:
Is that the effective date?

[00:32:28] Speaker 05:
Yes.

[00:32:30] Speaker 01:
Okay, so the same standard for Shea.

[00:32:34] Speaker 05:
Right, and I think the key there though, the key, right, is that the VA always has the ability to

[00:32:41] Speaker 05:
look and construct, it's trying to work with the claimants to find what's there.

[00:32:46] Speaker 01:
And that hypothetical, and in Shea, there was an adjudication that there were... You're out of time, but let me ask you this just one more way to make sure that you're giving me the answer.

[00:33:00] Speaker 01:
I don't want to hold you to an answer that I don't know you're giving or not.

[00:33:04] Speaker 01:
If the form specifies a medical record

[00:33:08] Speaker 01:
but doesn't specify a specific disability, if that medical record contains that other disability that is subsequently granted service connection, is the mere identification of that medical record on this form enough for an effective date of the date of the form?

[00:33:29] Speaker 01:
I think you've said yes, no, and then yes, so I'm just trying to get a clear answer.

[00:33:34] Speaker 05:
I want to make sure again that we have all the

[00:33:37] Speaker 05:
the facts of this hypothetical strafe.

[00:33:41] Speaker 05:
Are only medical records identified in the form, or is there a disability identified on the form?

[00:33:47] Speaker 01:
No, there's a disability, but not the one for which service connection was ultimately granted, which was the case in Shea as well.

[00:33:55] Speaker 05:
Well, but again, the distinction between this hypothetical and the one we just did is also important.

[00:34:01] Speaker 05:
There's a VA adjudication, as you mentioned.

[00:34:04] Speaker 05:
As a matter of

[00:34:05] Speaker 01:
My hypothetical, I can't give you every single detail of the hypothetical because all I'm talking about is effective data.

[00:34:14] Speaker 01:
It's okay.

[00:34:15] Speaker 01:
I don't need to ask this anymore.

[00:34:18] Speaker 04:
But I do want to pursue that for one more minute.

[00:34:22] Speaker 04:
In Shea, she identified medical records and said, please obtain these records and grant benefits, right?

[00:34:31] Speaker 04:
And that was held sufficient to be an informal claim.

[00:34:35] Speaker 04:
Is that a question for a formal claim?

[00:34:43] Speaker 03:
I hate to interrupt, but if we're trying to make this a parallel with Shay, the Shay record also includes a conversation that she had at the VA pointing out that her lack of memory and pointing to the fact that she had some mental problems.

[00:35:03] Speaker 03:
And it was that, in connection with the medical record that she pointed to, that was relied on by the court in saying she made it in plain.

[00:35:12] Speaker 05:
I mean, that's correct, Your Honor, because in Shea, remember, the language in Shea where it speaks of moving beyond the four corners of documents specifically referenced that there's guidance of where to go beyond the four documents in terms of...

[00:35:27] Speaker 03:
Pardon me, I'm sorry I interrupted and I apologize to the presiding judge for it, but I think if we're trying to set up parallels between Shea, we have to take Shea for all it taught for the first hypothetical.

[00:35:41] Speaker 03:
Judge Dyke's suggestion that all you would have is an identification by a veteran of a medical record is less than all that was in Shea.

[00:35:49] Speaker 03:
That's the only point I was trying to make.

[00:35:51] Speaker 04:
Right, and I think that's a helpful clarification, but my specific question now is

[00:35:57] Speaker 04:
taking part of Shea where she says, please obtain these records and grant benefits identifying specific medical records.

[00:36:07] Speaker 04:
Is that sufficient for a formal claim for any disability disclosed in the records?

[00:36:16] Speaker 05:
No, I think that form would be bounced back to Ms.

[00:36:19] Speaker 05:
Shea.

[00:36:20] Speaker 04:
That's not sufficient.

[00:36:21] Speaker 05:
No, but she would be able to get the effect, it would begin the process, and I think under Fleshman and those statutes and regulations cited therein, the form would be considered incomplete because it doesn't identify the nature of the sickness, but it could go back to the claimant to fill in that information.

[00:36:40] Speaker 05:
Now, I would add, because we also have this hypothetical sort of bouncing around,

[00:36:44] Speaker 05:
if there is a disability identified.

[00:36:47] Speaker 05:
And then in that box 17, there's other generalized statements that don't connect to anything.

[00:36:54] Speaker 05:
If VA did not take that to be a formal claim and issued a decision, the claimant would have the right, as Ms.

[00:37:01] Speaker 05:
Shade did in her case, to file a notice of disagreement.

[00:37:04] Speaker 05:
And that could then open up or continue the process to get something that the claimant thought

[00:37:11] Speaker 05:
she put in, but VA was not able to construct out of what was put down.

[00:37:15] Speaker 05:
And that, again, that's here.

[00:37:18] Speaker 05:
Sellers is a final decision.

[00:37:19] Speaker 03:
Shea was not.

[00:37:22] Speaker 03:
Unfortunately, that sort of confuses the issue.

[00:37:24] Speaker 03:
The question in front of us, unless I'm wrong, is whether or not this specific form filed by Mr. Sellers is a sufficient formal claim, yes or no.

[00:37:35] Speaker 03:
Not the question of what the VA might, if the VA had deemed it to be informal, what they might have done with it.

[00:37:44] Speaker 03:
And if it's insufficient, what is it lacking?

[00:37:49] Speaker 05:
The claim is insufficient unless it identifies the specific disability for which benefits are being sought.

[00:37:58] Speaker 05:
And that's why Mr. Sellers got exactly what he asked for.

[00:38:02] Speaker 05:
and did not file a notice of disagreement.

[00:38:05] Speaker 05:
He put in a form that listed five specific physical disabilities.

[00:38:10] Speaker 05:
Those were assessed.

[00:38:11] Speaker 05:
He received a rating.

[00:38:13] Speaker 05:
He did not file a notice of disagreement.

[00:38:15] Speaker 05:
Nobody heard from him for 15 years and then came back and now is trying to reopen that on the sole basis of box 40.

[00:38:26] Speaker 05:
And that's the trap of Mr. Carpenter's argument is that

[00:38:30] Speaker 05:
If you put in some disability on the form, now, that meant that VA at the time had to look for every conceivable disability and not, they wouldn't know what was a disability.

[00:38:43] Speaker 05:
The veteran knows what is ailing the veteran at that time.

[00:38:47] Speaker 05:
VA does not.

[00:38:48] Speaker 04:
The veteran is... Okay.

[00:38:49] Speaker 04:
Mr. Palki, I think unless my colleagues have further questions, we're out of time.

[00:38:53] Speaker 05:
Yes.

[00:38:53] Speaker 05:
Thank you, Your Honor.

[00:38:54] Speaker 05:
Thank you.

[00:38:55] Speaker 04:
Okay.

[00:38:55] Speaker 04:
Thank you.

[00:38:55] Speaker 04:
Thank both counsel.

[00:38:56] Speaker 04:
The case is submitted.

[00:38:57] Speaker 04:
That concludes our session for this morning.

[00:39:00] Speaker 02:
The Honorable Court is adjourned until Monday morning at 10 a.m.