[00:00:00] Speaker 03: Mr. Niles, please proceed. [00:00:09] Speaker 04: Thank you, your honor. [00:00:10] Speaker 04: And may it please the court. [00:00:12] Speaker 04: I'd like to proceed in two parts today. [00:00:15] Speaker 04: I'll start by addressing what relief Mr. Cook is seeking from this court. [00:00:19] Speaker 04: And I'll then turn to what I see as being his largest obstacle and why that should not deter the court from granting the relief that he seeks. [00:00:29] Speaker 04: And that relief is narrow. [00:00:31] Speaker 04: Mr. Cook prepared and filed his initial Veterans Court brief before this court issued its presidential decision in Lang versus Wilkie. [00:00:41] Speaker 04: The relief that Mr. Cook requests from this court is a remand for a decision on the merits of what, if any, entitlement he has under Lang versus Wilkie with respect to a 2005 Department of Veterans Affairs rating decision. [00:00:57] Speaker 04: In his initial brief to this court, [00:00:59] Speaker 04: Mr. Lang did ask for a further remand instruction that would require the Veterans Court in turn to remand the case back down to the VA for the agency to issue that initial possible entitlement decision. [00:01:14] Speaker 04: Mr. Cook would continue to be very grateful for that relief, but I do want to make very clear that he requests in the alternative even a narrower remand that would send this case back to the Veterans Court [00:01:28] Speaker 04: for, with instructions that leave open for the Veterans Court to decide what happens next. [00:01:36] Speaker 03: Counsel, this is Judge Moore. [00:01:40] Speaker 03: My difficulty with your Q arguments is that throughout this process, they have been a constantly moving target. [00:01:50] Speaker 03: You made three different Q arguments initially. [00:01:53] Speaker 03: Those three arguments were rejected. [00:01:56] Speaker 03: You then got to the Veterans Court, and you argued Q in the August 2015 decision [00:02:03] Speaker 03: because the VA failed to construe his 2006 submission as an NOD. [00:02:10] Speaker 03: That was the only argument you made to the Veterans Court. [00:02:13] Speaker 03: You had abandoned the three that you had made earlier. [00:02:16] Speaker 03: But because Cook had not raised that argument to the board, the Veterans Court dismissed for lack of jurisdiction, explaining that you can always raise this, that the 2015 decision [00:02:30] Speaker 03: is not final because the August 2006 submission was an NOD, the Veterans Court explained you can always raise that as a separate cue claim before the board, but because you haven't raised that before the board and the board hasn't had a chance to consider it, the Veterans Court couldn't consider it a separate ground for cue in the first instance and they dismissed. [00:02:54] Speaker 03: Is that the issue you're appealing to us? [00:02:57] Speaker 03: Because that's the only issue decided by the Veterans Court, which is that they didn't have jurisdiction to decide whether the 2015 decision was appropriate in light of the 2006 October submission and whether that was, in fact, an NOD. [00:03:16] Speaker 03: Is that the issue you're appealing to me now? [00:03:21] Speaker 04: No, Your Honor. [00:03:21] Speaker 04: The Veterans Court also determined that Mr. Cook had abandoned a challenge to the 2005 rating decision. [00:03:30] Speaker 04: And it is that determination of abandonment that is on appeal now. [00:03:35] Speaker 04: With the Veterans Court, I understand its decision to have charged Mr. Cook with, even though Lange had not yet issued, Lange saying that at the threshold of this Q analysis, [00:03:48] Speaker 04: the court will search for exceptions to finality. [00:03:54] Speaker 03: Counsel, let me stop you again, because perhaps you're talking about what you then argued on reconsideration, which differed from the three arguments you made from the board and what you argued to the Veterans Court. [00:04:07] Speaker 03: On reconsideration, you then argued for the first time [00:04:10] Speaker 03: that the October 2005 decision never became final because the October 2006 submission constituted new and material evidence under 3.156b. [00:04:23] Speaker 03: Is that the issue you're now appealing to us? [00:04:32] Speaker 04: The issue raised in the motion to reconsideration, yes, Your Honor, it is. [00:04:36] Speaker 04: There is no question [00:04:38] Speaker 04: that there was a missed opportunity for Mr. Cook to raise Lange either in the reply brief or as a submission of a supplemental authority. [00:04:46] Speaker 04: He did not. [00:04:47] Speaker 04: And he has no reason to doubt that if he had submitted Lange either raised it either in the reply brief or submitted it as a supplemental authority, that the Veterans Court would have heard him out under Lange in 2005. [00:04:59] Speaker 03: But counsel, the difficulty for me is what you argued to the Veterans Court [00:05:05] Speaker 03: And what they dismissed for lack of jurisdiction were arguments about the October 2005 decision, the October 2006 submission, and whether that constituted new and material evidence. [00:05:20] Speaker 03: And the board said, we have no jurisdiction we have to dismiss. [00:05:24] Speaker 03: Now on appeal to us, you're arguing something completely different. [00:05:29] Speaker 03: It is not something you presented to the Veterans Court or the board. [00:05:33] Speaker 03: You're now arguing the 2005 decision never became final. [00:05:38] Speaker 03: not because of the 2006 submission, but because of the June 2014 electronic records. [00:05:45] Speaker 03: This is completely out of nowhere. [00:05:48] Speaker 03: It was not part of any briefing before the board or the Veterans Court. [00:05:54] Speaker 03: Since we have before us a judgment, and that judgment is a dismissal for lack of jurisdiction, how can we, a Court of Appeals, [00:06:03] Speaker 03: who can't even make fact findings in cases like this, who can't even review fact findings in cases like this, assess a new ground of cue that was never articulated before any of those agencies or courts below. [00:06:21] Speaker 04: Your Honor, I'll start with the legal standard that I hope will address Your Honor's concern and then point to a citation within the appendix that I hope will further alleviate that concern. [00:06:32] Speaker 04: The legal standard being that it was not for Mr. Cook to enhance any particular terms from M&A for getting that, but rather to put the Veterans Court fairly on notice of this being an issue. [00:06:47] Speaker 04: And the appendix citation that I will direct your honors to is appendix at 30. [00:06:53] Speaker 04: This is on the fourth page of the motion for reconsideration, the second paragraph in the bottom, where Mr. Cook said that in accordance with lane, [00:07:02] Speaker 04: The procedural argument presented by Mr. Cook to the Veterans Court was not a new claim of cue. [00:07:08] Speaker 04: The court violated Lang when it concluded otherwise. [00:07:11] Speaker 03: Yes, but counsel, first off, this is in reconsideration, but that's fine. [00:07:15] Speaker 03: I'll even let you get away with that. [00:07:18] Speaker 03: The paragraph immediately preceding, though, explains that what your claim about, even with regard to Lang, is about the 2005 and 2006 [00:07:31] Speaker 03: time frame concerns, and in particular that the 2005 decision never became final because of the 2006 submission. [00:07:41] Speaker 03: That's your Lang claim on reconsideration. [00:07:45] Speaker 03: That bears no resemblance to what you're saying is your Lang claim on appeal, which has nothing at all to do, it seems like, with the 2006 submission [00:07:56] Speaker 04: but rather now is attached to the june two thousand fourteen records it your honor is uh... blue correct that if if this court includes that mister court did not through that second-class paragraph on a page attendance thirty but the veterans court fairly unnoticed that he was seeking three point fifty six he will leave with respect to this two thousand five decision [00:08:23] Speaker 04: That is it. [00:08:24] Speaker 04: And I am asking this court, I hope you're not putting on airs otherwise, that we see this paragraph, we saw it as putting the Veterans Court fairly on notice of what Mr. Cook was seeking. [00:08:39] Speaker 04: How? [00:08:41] Speaker 03: The paragraph right after the discussion on Lang says, consequently, Mr. Cook avers, the court should reconsider its decision in light of Lang. [00:08:49] Speaker 03: The court should vacate the board decision and remand Mr. Cook [00:08:53] Speaker 03: Cook's case to the board to review the October 2006 submission to determine if it prevented the October 2005 rating decision from being final. [00:09:06] Speaker 03: How could that paragraph put the board or the Veterans Court or anyone else on notice that you now believe it's not the 2006 submission that prevented finality [00:09:20] Speaker 03: but rather the June 2014 submission of electronic records. [00:09:27] Speaker 04: It was exactly the context that Your Honor just mentioned, where the board not only made an adverse finding for 3156B, but it also made this adverse determination for 3156C. [00:09:38] Speaker 04: It did so in Appendix 20, where it is saying that these service treatment records that have markers of [00:09:46] Speaker 04: having been first associated with the claims file in 2014, the board is saying, well, no, they were actually received in 2005 and so cannot give rise to this reconsideration. [00:09:56] Speaker 04: It's that broader context in which I see this motion for reconsideration that is raising blame at the threshold of Q to not be limited [00:10:05] Speaker 04: and not saying that it's limited to 3156B, but also requesting just to be heard out as to 3156C, what if any entitlement it gives to Mr. Cook with respect to the 2005 rating decision? [00:10:22] Speaker 03: Am I correct in understanding that if this [00:10:24] Speaker 03: is, as it feels to me, like a brand new Q argument made for the first time on appeal, that there's nothing that prevents you from bringing a new Q argument to the board at any time. [00:10:35] Speaker 03: So it's not as though us finding that there's no jurisdiction for us to consider this would prevent you from getting a day of review of this issue. [00:10:46] Speaker 03: Isn't it correct that you could always just bring this argument before the board in the first instance? [00:10:53] Speaker 04: There is at minimum a very big risk there, Your Honor, I would submit. [00:10:58] Speaker 04: The Board of Veterans' Appeals, what it says will go in terms of if it hadn't necessarily decided this 3156C issue of when these service records came into the record. [00:11:12] Speaker 03: Well, when you say there was a very big risk, the government expressly argues that the board never decided this because you never raised it. [00:11:19] Speaker 03: So don't you have a government brief [00:11:21] Speaker 03: on record saying that this issue was in fact not raised and therefore not decided? [00:11:29] Speaker 04: I would love to read that the government's read that way and perhaps my friend who's representing the government will clarify that that is what the government intended. [00:11:36] Speaker 04: I read it only that Mr. Cook could pursue this going forward and there's a big difference to me between it being pursued and having any reasonable success of being successful [00:11:47] Speaker 04: given this board determination that these records were not associated with the claims file essentially until 2014. [00:11:55] Speaker 04: And so if this court decides that there is nothing that it can do other than say that Mr. Koch is free to start again, where the Board of Veterans' Appeals' determination was not necessarily reached, would not bind future proceedings, he would be thankful even for that, Your Honors. [00:12:15] Speaker 03: Well, I mean, I think the government brief says, and I'll read from page 10, Mr. Cook failed to raise any argument regarding 3.156C before the Veterans Court, which did not address it. [00:12:27] Speaker 03: And thus, this court lacks jurisdiction over that issue. [00:12:30] Speaker 03: I don't know how you need anything more clear than that. [00:12:33] Speaker 03: It seems pretty clear. [00:12:34] Speaker 03: But OK, anything further before we hear from the government? [00:12:39] Speaker 03: Not for me. [00:12:40] Speaker 03: Thank you, Your Honor. [00:12:40] Speaker 04: I reserve the rest of my time. [00:12:44] Speaker 03: So Mr. Hellman is up next. [00:13:08] Speaker 03: Go ahead and do it. [00:13:11] Speaker 03: If that's what you're accustomed to doing, go ahead and put them all up. [00:13:37] Speaker 03: Okay, Mr. Hellman, please proceed. [00:13:41] Speaker 02: Thank you, Chief Judge Moore. [00:13:42] Speaker 02: Good morning and may it please the court. [00:13:45] Speaker 02: I want to address first the discussion that you just had with the opposing counsel, Chief Judge Moore, about what the 3.156C issue is and what we said in our brief. [00:13:56] Speaker 02: The board here decided the question of whether 3.156C applies to the June 2014 electronic record. [00:14:05] Speaker 02: mister cook could have appealed back to the veterans court he did not he cannot raise that uh... that issue because him on appeal now certainly can't resist to this court he can maybe raise it as a q claim because he can go back and raise a q plan but he can't uh... direct appeal of that issue i just want to clarify that i think the language that your honor pointed to in the government's brief [00:14:32] Speaker 02: is what that captures. [00:14:34] Speaker 03: Thank you for that clarification. [00:14:36] Speaker 03: So your view is that the board determined 3.1560 was not triggered, but then he never appealed that claim to the Veterans Court. [00:14:46] Speaker 03: And that's why we lacked jurisdiction over it. [00:14:49] Speaker 02: Over that claim, yes. [00:14:50] Speaker 03: But isn't it the case that Lange came out sort of between that time frame? [00:14:58] Speaker 03: It came out after his opening brief to the Veterans Court, but before his reply brief? [00:15:02] Speaker 02: No, first of all, Lange came out after his reply brief. [00:15:05] Speaker 02: It came out, and he actually moved for reconsideration the day after the decision came out. [00:15:13] Speaker 02: Lange had been on the books for about two months or so prior to that. [00:15:18] Speaker 02: Lange did not change the law such that it creates a new exception to finality. [00:15:22] Speaker 02: And I think, again, just more your [00:15:25] Speaker 02: Your questions to opposing counsel illustrate the difficulty of the issue. [00:15:31] Speaker 02: Mr. Cook initially argued this fourth theory of Q to the Veterans Court. [00:15:36] Speaker 02: He was arguing that the 2015 decision was manifest a clear and unmistakable error because of the 2006 submission should have been construed as a notice of disagreement. [00:15:51] Speaker 02: Lang comes out and he changes the [00:15:53] Speaker 02: the theory of his argument again saying, no, no, there was no final decision such that he could actually argue Q, because you need Q for a final decision. [00:16:01] Speaker 02: That's what Lang reaffirmed. [00:16:03] Speaker 02: Lang didn't create a new precedent on that point. [00:16:06] Speaker 02: Lang simply reaffirmed that. [00:16:09] Speaker 02: So he argues that after Lang, he should be able to go back and argue, somehow, undo the finality. [00:16:16] Speaker 02: And then here, he is trying to then say that, [00:16:21] Speaker 02: The end of the day, it's his 3.156C claim that he seeks to have heard. [00:16:27] Speaker 02: But the board decided that in 2019. [00:16:30] Speaker 02: He could have raised that. [00:16:33] Speaker 02: And also point out that he doesn't cite any precedent for the ultimate result that he seeks, that the board can't make a 3.156C determination in the first instance. [00:16:44] Speaker 02: And that's not correct. [00:16:45] Speaker 02: The Moore's case recently from this [00:16:48] Speaker 02: court, the board there made a factual finding about certain documents that were submitted, whether they triggered reconsideration or not. [00:16:57] Speaker 02: And there's no precedent saying that the board can't do that on its own. [00:17:01] Speaker 03: And I realize that we are reviewing the Veterans Court's decision about whether it properly dismissed for lack of jurisdiction. [00:17:11] Speaker 03: But just because it seems like it would be a good thing to do, [00:17:18] Speaker 03: Isn't it the case that the June 2014 service records were found to only be electronic copies of the exact same tangible documents that were part of the file that the board considered from the outset that the VA had in its possession? [00:17:37] Speaker 02: That's correct, Your Honor, yes. [00:17:39] Speaker 03: So these aren't really new service records. [00:17:43] Speaker 03: It's literally just an electronic version of a physical document that was absolutely considered as part of this file. [00:17:50] Speaker 02: That's correct, Your Honor, yes. [00:17:52] Speaker 03: I hate to say it, but it's a lot of arguing about a lot of different procedural shifts. [00:17:58] Speaker 03: But at the end of the day, even if we were able to reach this, which I don't think we can for jurisdictional reasons, I don't even understand what the point would be. [00:18:07] Speaker 03: to have them go back and consider the electronic version of documents they physically had in their possession and reviewed as part of the decision process? [00:18:18] Speaker 02: That's exactly correct, Your Honor. [00:18:19] Speaker 02: That's entirely correct. [00:18:20] Speaker 02: There's a lot of procedural wrangling, and the ultimate result is going to be the same. [00:18:24] Speaker 02: Being charitable, the only argument that Mr. Cook makes is that it was wrong for the board to find that these were the same electronic versions of the [00:18:33] Speaker 02: the paper documents. [00:18:34] Speaker 03: It's that the RO should have, the regional office should have found that and the board should have reviewed that, but there's nothing- I don't even see anything in any filing going anywhere which would suggest or point to any differences whatsoever. [00:18:47] Speaker 03: It's again just sort of procedural objections about things, but what I don't see is any merit. [00:18:57] Speaker 00: That's correct, Your Honor. [00:18:58] Speaker 00: Yes. [00:18:58] Speaker 00: What's left of the case? [00:19:00] Speaker 00: I mean, even if we were to remand, what is it we were remand on? [00:19:05] Speaker 02: That's a good question, Your Honor. [00:19:06] Speaker 02: I think, as Chief Judge Moore pointed out, at the end of the day, even if you were to remand, [00:19:12] Speaker 02: It would be to consider procedural wranglings that at the end of the day don't get Mr. Cook anywhere. [00:19:18] Speaker 00: And the Veterans Court has already exercised its discretion under land and considered those issues and said it would not make a decision on those. [00:19:27] Speaker 02: The Veterans Court said, I just want to make sure I understand your question, Judge, right now, the Veterans Court [00:19:34] Speaker 02: chose not to exercise its discretion to hear the Lang argument because it was raised for the first time in a motion for reconsideration. [00:19:42] Speaker 00: Is it your view that the finality arguments that are being made or that we hear now are being raised for the first time before this court? [00:19:53] Speaker 02: Yes, Your Honor. [00:19:55] Speaker 02: The finality argument, as it has morphed, [00:20:01] Speaker 02: version of it came into motion for reconsideration. [00:20:03] Speaker 02: The Veterans Court chose not to exercise its discretion to hear it. [00:20:07] Speaker 02: Mr. Cook appears to be challenging that on appeal. [00:20:11] Speaker 02: But at the end of the day, even if he got past that and got all the relief that he seeks, he would be remanded for determination that the board has already made, a factual determination that he doesn't seem to dispute. [00:20:24] Speaker 02: He only disputes who should be that decision maker. [00:20:27] Speaker 02: But he provides no support for that. [00:20:30] Speaker 02: And it runs counter to this court's precedent in 3.156C. [00:20:35] Speaker 03: To be clear, the Lang argument that he made on reconsideration that the board declined to consider was about 3.156B and about the 2005 and 2006 submissions. [00:20:47] Speaker 03: Isn't that correct? [00:20:48] Speaker 03: You're under reconsideration. [00:20:50] Speaker 03: Whether the 2006 submission constituted new and material evidence under 3.156B such that [00:20:58] Speaker 03: there should have been reconsideration of the 2005 decision. [00:21:01] Speaker 03: Isn't that what he argued on reconsideration before the Veterans Court? [00:21:08] Speaker 02: Well, I believe that's correct, Your Honor. [00:21:11] Speaker 02: I'm hesitating to put words in opposing counsel's mouth. [00:21:14] Speaker 02: But Lang was a 3.156B decision. [00:21:19] Speaker 02: I don't know that he made the distinction when he argued in his very brief motion for reconsideration, and this is a [00:21:26] Speaker 03: Yes, but wasn't he focused on the 2005 and 2006 submissions? [00:21:32] Speaker 03: He was saying the 2005 decision can't be final underlying because of his 2006 submission, correct? [00:21:39] Speaker 02: That's correct. [00:21:40] Speaker 03: That's what he argued on reconsideration. [00:21:42] Speaker 02: Yes. [00:21:42] Speaker 03: Now on appeal, he's arguing the 2005 decision can't be final because of his June 2014 electronic records, a completely different [00:21:54] Speaker 03: It might still be under the umbrella of Lange. [00:21:56] Speaker 03: It might still be under 3.156. [00:21:59] Speaker 03: But it's actually a very factually different argument, isn't it? [00:22:03] Speaker 02: That's my understanding, yes. [00:22:08] Speaker 01: Anything further? [00:22:09] Speaker 01: Well, yes. [00:22:10] Speaker 01: The thing that's been bothering me throughout is the question really whether the claim was proved. [00:22:17] Speaker 01: In 2005, isn't it in fact, whether as a matter of establishing a potential entitlement by the veteran that he made the claim, made a colorable claim, 2005, didn't prove it in 2005, but the claim was there. [00:22:38] Speaker 01: This is the same claim, 2015, the same claim that's carried forward, but [00:22:45] Speaker 01: The evidence has accumulated, but aren't what we're really talking about is the date of entitlement and not that whether or not it was proved or whether there was notice that something's wrong. [00:23:01] Speaker 01: I've got a claim, which then takes another 10 years to work itself out. [00:23:08] Speaker 01: Isn't that what this law is about in requiring that there be an initial claim somewhere along the way, not going back? [00:23:20] Speaker 01: to the date of discharge, but going back to some kind of manifestation with time, with age, whatever it is. [00:23:30] Speaker 01: And again, and to put this in the veterans friendly context that we must as to just what exactly, what difference does it make if it was improved in 2005, if it was identified? [00:23:47] Speaker 02: Well, Your Honor, the way that the claims typically work is the effective date of service connection is when the claim was proven where there's an injury, a disability, and a nexus between the two. [00:24:03] Speaker 02: Here, that was established based on medical records in 2014. [00:24:07] Speaker 02: 3.156C provides a very narrow [00:24:11] Speaker 03: I just want to be clear because you weren't really fast there. [00:24:14] Speaker 03: Medical records obtained based on actual medical evaluation that occurred in 2014, right? [00:24:23] Speaker 01: Yes. [00:24:23] Speaker 03: So that's what substantiated his claim. [00:24:26] Speaker 03: He brought a claim saying he had disability in 2005, but there weren't medical records at that time that substantiated the disability. [00:24:36] Speaker 03: The disability didn't become substantiated [00:24:39] Speaker 03: for purposes of service connection until medical records were put into this case in 2005, correct? [00:24:48] Speaker 02: In 2014. [00:24:48] Speaker 03: 2015, that's what I meant. [00:24:50] Speaker 02: Yes, that's entirely correct, Your Honor. [00:24:52] Speaker 02: Right. [00:24:52] Speaker 03: And these aren't two medical records that go back. [00:24:54] Speaker 03: These aren't 2005 medical records that had been lost by the VA. [00:24:59] Speaker 03: These are new doctors evaluating his injuries in 2015 and for the first time connecting them. [00:25:06] Speaker 02: Yes, that's entirely correct. [00:25:08] Speaker 02: And that's the difference. [00:25:09] Speaker 02: I think what Judge Newman was discussing is 3.156C provides a narrow exception when service department records have been lost or misplaced and not associated with the claims file. [00:25:20] Speaker 02: This is Kaiser. [00:25:21] Speaker 02: This is Blue Ball. [00:25:22] Speaker 02: This is the Morris case. [00:25:24] Speaker 02: The Army, Navy loses the medical records. [00:25:27] Speaker 02: It doesn't find them until later, or service department records actually, not medical records. [00:25:32] Speaker 02: and then the claimant is allowed to go back and be put back in the same position he or she would have been in, had those service department records been associated with the claims file in the initial evaluation. [00:25:45] Speaker 02: So Blue Bulk is the clearest on this. [00:25:48] Speaker 02: You don't want to penalize the veteran for the service department's inability to find medical records. [00:25:54] Speaker 02: But that's not this case. [00:25:56] Speaker 02: Here, as Chief Judge Moore points out, [00:25:58] Speaker 02: the competent medical evidence that substantiated the claim only came into the file in 2014. [00:26:05] Speaker 02: And so from that point on, Mr. Koch got his service connection and his effective date. [00:26:11] Speaker 02: And that's the ordinary case of benefits. [00:26:14] Speaker 02: He doesn't fit into the narrow reconsideration exception because he hasn't, at the end of the day, he hasn't pointed to any service department records that were unavailable. [00:26:24] Speaker 02: He tries to conflate the electronic copies [00:26:27] Speaker 02: copies that were in the file but that first that's a factual determination that this court doesn't review but at the end of the day those records were in the file they just weren't electronic. [00:26:36] Speaker 03: I have a somewhat dumb question and it's probably not in this record and you probably don't know the answer but in 2005 he's seeking disability for left and right ankle sprains. [00:26:48] Speaker 03: We have [00:26:49] Speaker 03: two medical evaluations conducted by the VA after he reopened his claim. [00:26:55] Speaker 03: One in December of 2014, one in March of 2015. [00:27:00] Speaker 03: I guess I'm just curious, were there any medical evaluations that were done after 2005? [00:27:07] Speaker 03: I mean, a serviceman files a disability claim for left and right ankle sprains. [00:27:13] Speaker 03: Was there medical evidence [00:27:17] Speaker 03: Was there some evaluation that was done in 2005 pursuant to his claim? [00:27:23] Speaker 02: I don't have that in the appendix, Your Honor. [00:27:27] Speaker 02: There's ordinarily a duty to assist the veteran and to conduct a medical examination. [00:27:31] Speaker 02: So if that wasn't done, that could be the basis for a different claim. [00:27:35] Speaker 02: A different Q claim. [00:27:35] Speaker 02: A different Q claim, sure. [00:27:36] Speaker 02: Got it. [00:27:37] Speaker 03: All right. [00:27:37] Speaker 03: Well, I'm just curious. [00:27:38] Speaker 03: Why would a veteran file a disability claim in 2005, and the only medical evidence that we have in front of us [00:27:46] Speaker 03: VA medical evaluations conducted in 2014 and 2015. [00:27:50] Speaker 03: And I understand why. [00:27:51] Speaker 03: It's because you've reopened the claim in 2014, which is what prompted the exams. [00:27:56] Speaker 03: I'm just kind of wondering why exams weren't done in 2005 and aren't associated with these records. [00:28:01] Speaker 02: And I'd be speculating because we don't have it in the record. [00:28:03] Speaker 02: It's possible that exams were done, but they didn't link the sprains to his service. [00:28:08] Speaker 02: That may be the issue. [00:28:12] Speaker 02: If this court has no further questions, we respectfully request that the judgment below be affirmed. [00:28:16] Speaker 03: Thank you, Mr. Hellman. [00:28:18] Speaker 02: Thank you. [00:28:36] Speaker 03: Okay, Mr. Niles, you have some rebuttal time. [00:28:38] Speaker 03: Please proceed. [00:28:40] Speaker 04: Thank you, Your Honor. [00:28:41] Speaker 04: And I realized that what this court, the fulcrum of this case, might end up being whether or not the motion to reconsideration fairly put the Veterans Court on notice of what Mr. Cook is seeking. [00:28:54] Speaker 04: But I do want to clarify just a couple points that came up during my friend's argument. [00:29:01] Speaker 04: Number one, when Mr. Cook appealed the board's decision, it was with respect to the 2005 and the 2015 rating decisions [00:29:10] Speaker 04: And part and parcel of that, we now know from Lang, was not only the board's decision as to cue, but also the board's decision as to 3156C and be at the threshold of that. [00:29:23] Speaker 04: But in terms of the chronology of this case, when it came time for Mr. Cook to prepare and file his initial brief, that inquiry into 3156C for the 2005 rating decision under then-current law looked futile. [00:29:39] Speaker 04: And so he did not raise it in the initial brief here, similar to what happened in Meche versus West. [00:29:48] Speaker 04: Second, there was reference made to procedural wrangling. [00:29:52] Speaker 04: And I want to emphasize that that is not the case. [00:29:55] Speaker 04: The board in 2014 made a factual determination that service treatment records first were associated with the claims file in 2005. [00:30:05] Speaker 04: The board was looking at something when it did that. [00:30:08] Speaker 04: Mr. Cook does not know what the board was looking at, does not know what the board could have been looking at. [00:30:14] Speaker 04: Because Mr. Cook had opted this appeal into direct review, meaning that everything that the board should have been looking at already had to have been of record. [00:30:24] Speaker 04: And so for the board to look at something to determine when these service treatment records first were associated with the claims file, which in turn makes the difference, is this positive for whether 3156C [00:30:39] Speaker 04: is triggered here. [00:30:41] Speaker 04: That is a big concern that Mr. Koch has. [00:30:45] Speaker 04: And so for all the reasons in the brief, those that I had mentioned earlier today, and unless this court has any further questions, I would like to respectfully reiterate Mr. Koch's request that the court remand for decision on the merits of what entitlement, if any, he has underling versus Wilkie. [00:31:04] Speaker 04: Thank you. [00:31:05] Speaker 03: I thank both counsel. [00:31:06] Speaker 03: This case is taken under submission.