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The next argued case is number 21 1384 Lloyd against McDonald mr.. Carpenter Excuse me, may it please the court get a carpenter appearing on behalf of Michael Lloyd I

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The question in this case is whether or not the Veterans Court failed to comply with an order and decision issued by this court in March of 2017.

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We believe that they did.

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We believe that the Veterans Court did not comply with the order in either of the two decisions that were made by the Veterans Court on remand from this court.

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This court, in its March 29, 2017 decision, explicitly found that the Veterans Court had made an error of law when it replied upon the amended provisions of 38 CFR 3.156C in lieu of applying the applicable version of that regulation, which did not contain a provision that imposed a sanction against the veteran

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for having not cooperated or provided information that was requested.

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This court unambiguously instructed the Veterans Court to remand and then proceed with Mr. Lloyd's appeal.

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That has never happened.

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Mr. Lloyd's appeal has never been decided by the Veterans Court

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based upon the instruction from this court, which was to provide a new analysis of the issue of the 2002 version of 3.156C, and to consider that in light of the additional pertinent legal provisions that were discussed by this court in its 2017 opinion.

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Mr.. Carpenter that the government reads our earlier opinion to Acknowledge the possibility on remand of taking account of Not just the kind of the right year for the 3.156 but also the 3.159 point and the regulations about what's required to establish the PTSD

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Correct.

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So why isn't what happened then on remand, ultimately the decision we're now reviewing, consistent with that, by relying ultimately on the regulation about the need for a diagnosis as of a certain date?

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Because, Your Honor, what this court ordered in 2017 was for the Veterans Court to complete the judicial review that was initiated by Mr. Lloyd for the second time

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which was, was there an error by the Board of Veterans' Appeals in applying the prior version?

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The Board has never been told that that was an error of law.

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As a result, the Board has simply rehashed

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and re-found that the 2002 version of the regulation didn't apply.

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And its most recent iteration of that decision simply explained why they would not have gotten a different result.

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The board has never been instructed that they made an error.

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If the board was not instructed that they made an error, then the board clearly was not re-adjudicating

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Mr. Lloyd's appeal on the basis of the proper version of the regulation.

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And Mr. Lloyd was entitled to that as a matter of law when he appealed not once but twice to the Veterans Court asking for the Veterans Court to do what this court instructed it to do in 2017.

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Your Honor, frankly, I have nothing else to say.

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I apologize for not taking up more time.

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But clearly, if I have nothing more to offer other than what this exchange just covered, I do not believe that it is of value for me to continue to attempt to make argument when further argument is not necessary.

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I'll reserve the balance of my time for my own.

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Thank you.

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We'll hear from the Secretary, Mr. Holman.

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Good afternoon, Your Honors, and may it please the Court.

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The Veterans Court here complied with this Court's mandate in Lloyd 1 when it affirmed the Board's decision that declined to find an earlier effective date on two separate grounds.

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That decision should be affirmed.

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I think Mr. Lloyd here misreads the scope of this court's mandate in Lloyd 1.

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It didn't say perform reconsideration under the 2002 version of the reconsideration regulation.

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It simply said that the board and the Veterans Court used the wrong version of the regulation, that they should use the correct version should they do that analysis.

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The board here on remand,

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essentially looked at the 2002 version of the regulation and found that it wouldn't apply because of the lack of a PTSD diagnosis in 2002.

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Mr. Lloyd seems to want reconsideration solely for the sake of reconsideration, but the outcome, even if reconsideration would be performed, would be the same without a PTSD diagnosis in 2002.

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He's not entitled to an effective date of that year.

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What do you think the board

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was getting at with how it was treating the 2002 version of 3.156C when it says that version as written in 2002 does not apply here.

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When we wrote an opinion saying you need to apply it.

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And I think this is where a little of the confusion can lie.

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I don't think the board was disputing that if reconsideration were to apply, it would be the 2002 version of the reconsideration regulation.

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The board was determined that reconsideration is not.

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Doesn't apply that there is no need for reconsideration here because of the lack of PTSD.

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There's this distinction that Does the reconsideration provision apply and then if so, what is the outcome of that and some of the cases admittedly?

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Haven't clarified it this whole line of reconsideration cases.

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There's kind of

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Threshold question of does three one five six see apply and then if it applies What's the outcome of that reconsideration here it seems?

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reading the board the board's analysis is that it found that

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Reconsideration doesn't apply.

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And I don't think this court said that reconsideration applies in Lloyd 1.

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It simply said that if you were to consider.

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Maybe I need a tutorial on what you mean by reconsideration.

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It feels like there's a couple different ways to understand what is a reconsideration.

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So can you identify them and then explain what your version of is, hey, we don't need to do reconsideration.

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I can try, Your Honor.

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I'll do my best.

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I'm not sure I'll be able to fully do justice.

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But I think the Blue Ball case is sort of the best example of what this regulation is intended to provide.

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And the regulation says that if there are service department records that weren't associated with the claim file when the claim was denied,

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And they later become available and associated with the claim file.

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The VA will go back and reconsider the claim.

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That's sort of the broad picture.

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And I think it's meant to apply to instances, for instance, where the records weren't available either through the fault of the VA or the service departments.

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They were lost, misplaced, they were classified, and they couldn't be used in substantiating a claim.

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So for instance, if there was a PTSD diagnosis in 2002, but there was no service department record confirming a stressor because either the records were unavailable, or they were classified, or what have you.

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Later on, those records become available.

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The VA under 3156C reconsiders the claim and then says, well, we have the PTSD diagnosis.

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The only thing that was missing was a confirmed service department record showing a stressor.

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Now we have that.

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The veteran would be entitled to an earlier effective date.

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And that would be reconsideration.

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It wouldn't be the question of whether reconsideration should be performed.

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It would be performing that actual reconsideration, that second step that I just talked about.

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So we remanded this case back to the Board and Veterans Court for them to take a second look at the case, I guess, in light of the 2002 version of the regulation.

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But because reconsideration is a term of art, that's why the board said, well, this is not a reconsideration.

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Whatever this is, it's not a reconsideration.

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Well, reconsideration is a term of art.

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And I guess if I could just continue with the explanation and then address your honor's question.

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So the scenario of service department records becoming available and substantiating a stressor, that's sort of the ordinary way that this regulation is supposed to act.

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You have the Kaiser case, which this court has heard about, Mr. Carpenter is also familiar with, where there was no reconsideration because there were service department records, but they were found to not be relevant.

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And so that sort of failed the step one, the threshold issue of do we perform reconsideration

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We don't because there's no relevant service department records And I think that's the distinction that I was driving at earlier that there's the threshold question of can I ask on that does the board or VA?

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sequence the decisions of

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whether to reopen and then the conclusion, if there's reopening, the conclusion it reaches on the merits of the now reopened claim, or does it always do those two things at the same time?

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Do you mean reconsideration?

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Because reopening is also a term of art.

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Is 156C uses reconsideration?

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It does.

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Well, yeah, it uses both.

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3.156A uses reopening, and that's why I just want to make sure I understand.

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One we're talking about here is reconsider okay, so does it sequence the decision here?

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We're going to decide to reconsider Later will tell you and maybe they'll even be proceedings in the interim about the result We will reach having decided to reconsider or is it?

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All combined in the same order it is

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It is sequenced.

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Sometimes it may be combined in one order.

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Seemingly here, it may be what it does.

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But it is often sequenced.

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The Kaiser case, the Morris case that we cite, the VA says, we don't even need to reconsider because these records don't trigger reconsideration.

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If the records did trigger reconsideration, then there may be cases where they do.

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then the VA would reconsider and give... And in that second stage process there is or there is not an opportunity for additional evidence to be submitted.

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My understanding was that there is such an opportunity so that even it's not just that we're reconsidering on the basis of the record

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that originally existed plus the new service records, there can actually be additional evidence.

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Is that wrong?

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I don't think that's wrong, Your Honor.

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I don't have a case where that has happened.

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Because the new thing that causes reconsideration are the service department records.

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I suppose there could be.

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Well, I guess what I'm imagining is service records that are relevant, so now the board reconsiders.

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In the course of the reconsideration proceeding, the veteran now supplies new medical evidence to supplement the medical evidence that the board had in the original proceeding that is now being reconsidered found insufficient.

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Well, and it may also depend on which version of the reconsideration regulation you're talking about, because the 2006 version says that records that didn't exist at the time of the original decision

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do not come into the mix.

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And so it's the service department records that were lost by the service department, or they were classified and they couldn't be used.

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Those are associated with the claim file.

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And then the VA reconsiders, maybe there could be some, I can envision a situation where there could be additional, not necessarily new medical evidence put forth by the claimant, but some sort of additional

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Medical evaluation of the the now completed record with both the yeah, I meant I meant to include that under the medical evidence I don't think that that would be precluded by the regulation I think if the veteran were to then put in additional medical evidence that didn't exist at the time of the original claim that would bring it into the realm of 6a but but

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I think what I'm hearing, Judge Sorrento, you were asking is if the new service department records come in, there's the prior evidence of the record whether the VA would then, could potentially seek additional medical reevaluation of that.

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I don't think there's anything that precludes that.

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But here, just to go back to your line of questioning, Judge Chen, and I don't know if I adequately answered your

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Question there is this distinction, and I I appreciate it's a little bit confusing It's sort of a threshold question the way I like to think of it is is reconsideration triggered and then if reconsideration is triggered sort of discussion that we were having a judge Toronto What's the outcome of reconsideration here the board short-circuited that and said even if?

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The end result is going to be no earlier effective date because there's a lack of PTSD diagnosis in 2002

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And so that's why earlier I said that I think Mr.. Lloyd here seeks reconsideration solely for the sake of reconsideration at the end of the day he can't get an earlier effective date for lack of a PTSD diagnosis and so The I think that's what the board was getting at in its analysis.

[00:17:04] Speaker 01:
It's a little bit less straightforward, but the precedent in these lines of cases is a little bit conflated sometimes and

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If this court has no further questions, we respectfully request that you affirm the decision.

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Thank you.

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Mr. Carpenter, you have the last word.

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May it please the court, overlooked by both the Veterans Court and the government is that reconsideration requires a decision on reconsideration.

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The difference in the versions of the regulations that existed in 2002 versus the amended regulations is that the Secretary finally clarified that there was a sequential process.

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There is no sequential process in the 2002 version.

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It does not state with any clarity whatsoever

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what it is that is supposed to happen.

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We now know with the amendment what was supposed to happen.

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What Mr. Lloyd was deprived of was the right that is mandatory.

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There can be no question that reconsideration is mandatory under the 2002 version.

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Could you just quickly explain what's your theory for how Mr. Lloyd can get a 2002 effective date in light of Young versus McDonald?

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It seems to be pretty clear to me that you cannot get an effective date that's a date earlier than your first diagnosis of PTSD.

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Young was dealing with the regulation in an entirely different context.

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I agree with you that that is the holding in Young.

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But this appeal is not about whether Young was or wasn't correctly decided.

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This appeal is about the fact that Mr. Lloyd appealed to this court not once but twice and got remands to get the opportunity for reconsideration under the 2002 version of the regulation.

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I don't believe it serves Mr. Lloyd's interest to attempt to distinguish with Young as though Young created an impediment.

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There can be no, that question of impediment only arises after there is a decision on reconsideration.

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But this court recognized correctly, which was not an issue in Young, that there are other VA regulations that are pertinent

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3.159 as well as 3.304 F that need to be considered.

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And part of that is in the duty to assist.

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One of those regulations considered here by the board?

[00:20:19] Speaker 00:
No.

[00:20:19] Speaker 00:
Yes, your honor.

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They vote 3.159, 3.34, and 04 in his young opinion.

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But only in the context of we don't have to apply this regulation.

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We don't have to give Mr.

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Lloyd his right to a decision.

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3.156C gives him the right to receipt of a decision on reconsideration of his original claim when service department records are received.

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I'll just try to ask one more time and then I promise I won't ask you another question.

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What is the theory for how

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Mr. Lloyd here can get a 2002 effective date when his earliest

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medical diagnosis of PTSD was in 2006?

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Because as Judge Taranto indicated, under the correct interpretation of the prior version, he is entitled to submit new evidence because it is a new adjudication.

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It is a reconsideration of the original claim.

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And he can submit a retrospective medical opinion which will indicate

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that he had the symptoms and manifestations of PTSD with or without a diagnosis from 2002, the date of his claim.

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And therefore, he can demonstrate it as a matter of law and be entitled to it.

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This court gave him that opportunity in 2017.

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This court said that it was necessary for the Veterans Court to

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determine how 3.156c under the 2002 version should be applied.

[00:22:09] Speaker 00:
They never did that.

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They never found that the board erred.

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The confusion here is when the VA attempts, as they've done in their argument today, to equate the future version, the amended version,

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which does give us a sequence and in C1 tells us that it is a threshold question based on whether relevant service departments were received.

[00:22:37] Speaker 00:
The 2002 version does not contain the word relevant.

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Can I ask you since Judge Chan has sworn off asking other questions?

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What is the state of the case law on the permissibility of what you referred to as retrospective diagnoses?

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A diagnosis say issued by a

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physician in 2021 that says My judgment is mr.. Lloyd had PTSD starting in 1999 I Guess there's two answers does young preclude that in other case law there is case law that specifically indicates that if a claim is pending that you are able to do that and

[00:23:31] Speaker 00:
What is unclear in the case law, which is what it was critical about this court's decision in 2017, is that it asked, excuse me, ordered the Veterans Court to determine what the scope was of the prior version.

[00:23:48] Speaker 00:
and what was and wasn't required.

[00:23:51] Speaker 00:
If you examine the language of the prior version, it does not contain the word relevant, but more importantly, it doesn't contain any qualifiers, but what it does say is... At least in my mind, I'm focused elsewhere.

[00:24:05] Speaker 02:
I'm focused on...

[00:24:07] Speaker 02:
What if anything does young or post-young case law say about whether anybody can get PTSD benefits that start before the date on which the diagnosis was uttered?

[00:24:29] Speaker 00:
I don't think the case law changes after Young.

[00:24:34] Speaker 00:
There is no question that there must be a basis for a diagnosis of PTSD.

[00:24:42] Speaker 00:
The question is, upon reconsideration, when the claim is adjudicated anew, can you rely upon, under the prior version, a retrospective opinion and what the

[00:24:57] Speaker 00:
Language of the prior version says is that in the last sentence where such records clearly support the assignment of a specific rating over part or the entire period involved a retrospective evaluation will be assigned accordingly except as it may be reflected by the date of the filing of the original claim and

[00:25:25] Speaker 00:
Which means that the effective date can never go back before the date of the original claim, but it can go back to the date of the original claim, which is the sole function of reconsideration under the prior version of 3.156C.

[00:25:43] Speaker 03:
Young, in describing the meaning of 3.304F at 1352, says the secretary admits

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that a medical opinion could diagnose the presence of the condition and identify an earlier onset based on pre-existing symptoms that did not occur here.

[00:26:07] Speaker 03:
So I guess if there's a medical opinion that not only diagnosis PTSD on that date of the opinion but also diagnosis the presence of the condition

[00:26:21] Speaker 03:
and identifies an earlier onset date, that would mean that the identified earlier onset date inside that medical opinion could satisfy an effective date.

[00:26:33] Speaker 00:
That would be correct, Your Honor.

[00:26:34] Speaker 00:
And that's what you get, what Mr. Lloyd was entitled to get when the VA received those service department records.

[00:26:42] Speaker 00:
The VA was required as a matter of regulatory obligation to reconsider, to give him a do-over, to re-adjudicate his original claim.

[00:26:57] Speaker 00:
The provisions of the prior version cannot be read or understood in any other way.

[00:27:02] Speaker 00:
This court said, because the Veterans Court in 2017 had not addressed that question, that the question needed to be addressed by the Veterans Court in the first instance.

[00:27:15] Speaker 00:
That simply never happened.

[00:27:18] Speaker 00:
And that's what this court must correct.

[00:27:21] Speaker 00:
Unless there's further questions from the panel.

[00:27:23] Speaker 04:
Thank you, thanks to both counsel the case is taken under submission