[00:00:00] Speaker 00:
Our final case this morning is number 20-1838 Morse versus Tran.

[00:00:07] Speaker 00:
Ms.

[00:00:07] Speaker 00:
Zimbrala.

[00:00:10] Speaker 03:
Good morning.

[00:00:12] Speaker 03:
There are nine reasons why the 2008 board's decision shows that it did not conduct an acceptable reconsideration.

[00:00:21] Speaker 03:
Number one, the 2008 board decision never cited to 3.156C.

[00:00:28] Speaker 03:
It's cited to 3.156A.

[00:00:33] Speaker 00:
Number two.

[00:00:34] Speaker 00:
Before you go through the nine, let's assume that there was error in the 2008 board decision.

[00:00:43] Speaker 00:
If there was, wasn't the remedy for that error by appeal, which was not taken to the Court of Appeals for Veterans Claims?

[00:00:52] Speaker 03:
The claimant could have appealed.

[00:00:54] Speaker 03:
However, 3156C is an exception to finality.

[00:01:00] Speaker 03:
It was not necessary for him to appeal if he has a valid 3156 claim based on new service department records.

[00:01:09] Speaker 00:
What is his authority for that?

[00:01:12] Speaker 01:
Sorry, go ahead.

[00:01:13] Speaker 01:
Doesn't Blue Bar answer that question by saying that if you don't appeal,

[00:01:19] Speaker 01:
from the first decision that that becomes final, even if the first decision was predicated on 1.56C.

[00:01:30] Speaker 03:
Bluebaugh does not answer the question presented here.

[00:01:33] Speaker 03:
The question here is, what is needed to show that a reconsideration occurred?

[00:01:39] Speaker 01:
Well, okay, but as to the finality point that you were making, doesn't Bluebaugh answer that specific point, which is the question Judge Dyke was asking?

[00:01:50] Speaker 03:
Bluebar also recognizes that 3156C is an exception tooth finality.

[00:01:56] Speaker 03:
On the facts of that case, 3156C did not apply.

[00:02:00] Speaker 03:
But Bluebar never held that there was not an exception tooth finality if the right situation appeared.

[00:02:10] Speaker 03:
Going on with Bluebar, in Bluebar,

[00:02:15] Speaker 03:
Blue Bar did not focus on the issue of what the correct reconsideration.

[00:02:19] Speaker 03:
In Blue Bar, they never received new relevant service department records.

[00:02:24] Speaker 03:
The new records there, which was a Form 20, were not relevant to any matter in dispute.

[00:02:31] Speaker 03:
So this court was not required to adjudicate what a proper reconsideration must look like.

[00:02:37] Speaker 03:
The scope of a reconsideration review was not an issue.

[00:02:41] Speaker 03:
The parties agreed that VA had sufficiently considered the Form 20, and there was no claim that the Form 20 led to a duty to assist.

[00:02:52] Speaker 03:
The Blue Bar case did not go into any detail as to what constitutes a merits review of the claim, perhaps because it was obvious that the new service department record was so insignificant and had no bearing at all on the issues in that case.

[00:03:09] Speaker 03:
In UBAG, the requirements of C1 were not met.

[00:03:13] Speaker 03:
Here, by contrast, the new service records documenting stressors and combat were relevant to the reason for the 2002 denial.

[00:03:22] Speaker 04:
Going... So you're saying that the only thing that can be reconsidered in a reopening is the aspect of the reopening that the veteran asked to be?

[00:03:39] Speaker 04:
considered?

[00:03:41] Speaker 03:
A reopening is not the same as the reconsideration and that's a key point in this case.

[00:03:54] Speaker 03:
The primary difference between a reopening and a reconsideration is that in a reopening, there's no need to re-judicate the original claim.

[00:04:04] Speaker 03:
The effective date of a reopened claim is the date of the claim.

[00:04:08] Speaker 03:
Here, the reopened claim was filed in 2004.

[00:04:13] Speaker 03:
But if it's a reconsideration, then the claim that's reconsidered is the claim filed in 1999.

[00:04:21] Speaker 03:
So the issue becomes, why did the 2002 rater at the AOJ deny the claim?

[00:04:28] Speaker 03:
What was the missing elements?

[00:04:30] Speaker 03:
Another difference is that the duty to assist in a reconsideration all relates to assistance for the original claim.

[00:04:41] Speaker 01:
Ms.

[00:04:42] Speaker 01:
Emberlin, this is Judge Bryson.

[00:04:45] Speaker 01:
The question I have is, in this case, the 2008 board found that Mr. Morse was not currently suffering from a disability.

[00:05:00] Speaker 01:
normally is a requirement for granting relief of any sort, that you have a current disability.

[00:05:07] Speaker 01:
And why doesn't that in and of itself into the, and they made that determination based on all the evidence, including the service records and so forth, why doesn't that into the inquiry at that point and avoid the need for a retrospective examination as of the 2000 claim?

[00:05:31] Speaker 03:
The 2008 board found that there was no disability as of 2006.

[00:05:37] Speaker 03:
That was the date of the VA exam that found there was no PTSD.

[00:05:43] Speaker 03:
The VA only looked at the best condition as of 2006, not from 1999 to 2002.

[00:05:52] Speaker 01:
But what would it have done if it had done what you're suggesting, I take it, is that they should have asked the question,

[00:06:00] Speaker 01:
Even though he's not disabled now, as they found, he was disabled in 1999, 2000, and 2002.

[00:06:10] Speaker 01:
But what would the relief be because they're finding that he's not currently disabled?

[00:06:16] Speaker 01:
How does that give them a hook to say that he gets some kind of benefit?

[00:06:22] Speaker 03:
He is currently disabled and he is currently... He is now, but as of 2008, the board found that he was not disabled.

[00:06:31] Speaker 01:
So my question again is, doesn't that end the inquiry as far as the 2008 board is concerned?

[00:06:41] Speaker 03:
It does not.

[00:06:42] Speaker 03:
Why?

[00:06:43] Speaker 03:
Because if this case is remanded, then there are six things the VA should do differently.

[00:06:51] Speaker 03:
First, unless it agrees that Mr. Morse suffered from PTSD from 1999 to 2009, then it should order a retrospective exam where the examiner is asked to provide an opinion as to Mr. Morse's diagnosis for that entire time period.

[00:07:09] Speaker 03:
The VA should explain to the examiner that staged ratings can be considered.

[00:07:15] Speaker 03:
And I believe that would answer your question as to what could happen.

[00:07:19] Speaker 03:
The claimants

[00:07:21] Speaker 03:
Mr. Morris suffered from PTSD, we know, from 1999 to 2002.

[00:07:30] Speaker 03:
It is possible for stage ratings to grant some benefits for that period, remove them from the period of 2006 unless that rating is changed, and then add them back as of 2009.

[00:07:44] Speaker 03:
Also on remand,

[00:07:47] Speaker 03:
Number two, the VA should tell the examiner that Mr. Morse is a combat veteran.

[00:07:52] Speaker 03:
The lack of this knowledge made a difference to the 2006 VA examiner.

[00:07:58] Speaker 03:
The VA should explain to the examiner that this verifies the stressor.

[00:08:04] Speaker 03:
The VA on remand must focus on the 2002 denial and the reason for that denial.

[00:08:10] Speaker 03:
The VA should also identify 1999 as the earliest possible entitlement to benefit states.

[00:08:18] Speaker 03:
The VA should recognize that 3156C is an exception to the rule of finality, and the VA must reconsider the denial of the 2004 claim after its medical examiner is informed that combat has been verified.

[00:08:36] Speaker 04:
But I, Council, it seems to me like you're still

[00:08:40] Speaker 04:
doing what Judge Bryson was concerned about.

[00:08:43] Speaker 04:
Even if we agree with you that the 2008 decision was wrong and should have looked at other things, how do we get around the fact that it's final?

[00:08:58] Speaker 03:
31560 does not tell us explicitly what to do about an intervening denial.

[00:09:05] Speaker 03:
It tells us what to do for the original claim.

[00:09:10] Speaker 03:
The clear words of C1 speak about when VA first decided the claim, VA will reconsider the claim.

[00:09:18] Speaker 03:
And that's the 1999 claim.

[00:09:21] Speaker 03:
And that has never been done.

[00:09:23] Speaker 03:
That should happen.

[00:09:25] Speaker 03:
Once that's done then, as I said, 3156C doesn't tell us what to do about the intervening denial.

[00:09:32] Speaker 03:
I think there are two alternatives for this court.

[00:09:35] Speaker 03:
It can order that the 2004 claim

[00:09:38] Speaker 03:
also be reconsidered in light of verified combat.

[00:09:41] Speaker 03:
The 2004 claim was denied because of the opinion of a VA examiner who found that the lack of combat trauma or symptoms made diagnosis of military-related PTSD impossible.

[00:09:55] Speaker 03:
But now that combat has been verified, Mr. Moore should not be denied any benefits because of the error of the VA in verifying combat.

[00:10:05] Speaker 01:
I did not understand you to have made that specific argument regarding the need to redo the adjudication based on his combat status before the Veterans Court.

[00:10:22] Speaker 01:
You mentioned in your brief before the Veterans Court that he was in combat, but I didn't think that you made that express argument.

[00:10:30] Speaker 03:
It's in a principal brief before this court.

[00:10:33] Speaker 01:
In this court, yes, but it wasn't before the Veterans Court, as far as I could tell.

[00:10:37] Speaker 03:
There was no discussion of the combat presumption specifically before the Veterans Court.

[00:10:42] Speaker 03:
That is correct.

[00:10:44] Speaker 03:
The discussion concerned the effect of the 2010 memo, which verified combat.

[00:10:52] Speaker 03:
And that was the reason for the remand in 2017.

[00:11:00] Speaker 03:
Going back to the question of the intervening denial,

[00:11:03] Speaker 03:
One choice this court has, as I said, is to order that the 2004 claim also be reconsidered in light of the new service department records.

[00:11:15] Speaker 03:
But in the alternative, this court can simply direct the AOJ to make an initial decision regarding the proper procedure to follow if there is an intervening denial.

[00:11:27] Speaker 03:
But that denial is not a bar.

[00:11:30] Speaker 03:
If it had been a bar to any reconsideration, the secretary would not have entered into the joint motion for remand in 2017.

[00:11:44] Speaker 00:
It has... Could it help me understand what you say is the rule here?

[00:11:51] Speaker 00:
Suppose the board in 2008 had specifically cited

[00:11:58] Speaker 00:
3.156C and held that there was no basis for relief under that section.

[00:12:06] Speaker 00:
Would you still be arguing that that 2008 decision was not foreclosing later raising of the same point?

[00:12:20] Speaker 03:
If all they had done was cite to 3.156C, that would not have been enough.

[00:12:26] Speaker 03:
We would have to review the substance of the 2008 board's analysis and determine whether or not it reconsidered the 1999 claim.

[00:12:39] Speaker 03:
Looks like my time is up.

[00:12:43] Speaker 00:
Okay.

[00:12:43] Speaker 00:
Well, unless there are further questions, we'll hear from the government.

[00:12:50] Speaker 00:
Hearing no questions, we'll hear from Mr. Hellman.

[00:12:57] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:13:00] Speaker 02:
As the panel has already pointed out, Mr. Morse's challenge to the 2008 decision cannot be raised again through 3.156C.

[00:13:09] Speaker 00:
3.156C.

[00:13:12] Speaker 00:
I guess their argument is that they, in 2008, and correct me if I'm mistaken about this, that they didn't raise the 3.156

[00:13:27] Speaker 00:
argument and that the board didn't address the 3.156 argument and that what you have now is a different proceeding where that issue has been raised and that there shouldn't be any foreclosure from as a result of the 2008 decision because it was addressing a different section of the regulations.

[00:13:52] Speaker 00:
So certainly

[00:13:56] Speaker 00:
We can't review later on every single error in the earlier decision, but is there anything to the argument that that just wasn't a 156C proceeding at all?

[00:14:11] Speaker 02:
No, Your Honor.

[00:14:12] Speaker 02:
The purpose of 3.156C is to put the service department records that were unavailable in front of the agency.

[00:14:22] Speaker 02:
The agency then has to consider those service department records.

[00:14:25] Speaker 02:
That's what happened here in 2008.

[00:14:27] Speaker 02:
So there's a earlier when Mr. Moore's claim was denied for lack of a stressor in 2002, there was no confirmation of the stressors.

[00:14:38] Speaker 02:
There's the 2005 service department records that were received.

[00:14:43] Speaker 02:
The board then looked at those.

[00:14:45] Speaker 02:
Now the board didn't expressly state that it was doing it under both

[00:14:48] Speaker 02:
3.156A and 3.156C, but it examined those records in light of the claim.

[00:14:55] Speaker 02:
And that is all that's required for 3.156C.

[00:14:59] Speaker 02:
As Blue Ball points out, as Kaiser points out, it's a remedial regulation by the VA to make sure that the veteran is not denied the benefit of records that were missing or classified at the time that his or her claim was being adjudicated.

[00:15:15] Speaker 02:
That is what happened here with respect to those earlier records, and that is all that the regulation requires.

[00:15:23] Speaker 02:
It doesn't give Mr. Moore's an opportunity to then undo the finality of the 2008 decision years later.

[00:15:31] Speaker 04:
And we'll also point out that he... So the board didn't say, well, the board never said what it was doing exactly, but why did the board reopen in the first instance if it wasn't solely to look at

[00:15:45] Speaker 04:
the existence of the service connection?

[00:15:54] Speaker 02:
Well, that was the reason the board reopened because it received new service medical and personnel records that were unavailable.

[00:16:02] Speaker 02:
So under 3.156, the veterans allowed to present that and there's sort of two pathways.

[00:16:09] Speaker 02:
One is if those records were previously unavailable,

[00:16:13] Speaker 02:
and then result in an award of benefits, those benefits can be retroactive to the initial claim.

[00:16:20] Speaker 02:
Under 3.156A, if this is new and material evidence, the claim is reopened and service connection can be granted.

[00:16:28] Speaker 02:
And eventually, that's what happened.

[00:16:30] Speaker 02:
I mean, in 2009, Mr. Morris saw reopening again, and the VA again looked at the records

[00:16:38] Speaker 02:
and got a different medical diagnosis, gave him a medical exam, another medical exam, and then found that he did have PTSD and gave him an award of benefits in 2009.

[00:16:48] Speaker 02:
What he's trying to do now is go back using 3.156, see when he, A, failed to appeal it, the 2008 decision, but then also sought to challenge that claim on the basis of clear and unmistakable error, and that was also a successful... Well, putting aside whether the 2008 decision is final, I mean, that's something that

[00:17:08] Speaker 04:
we need to consider.

[00:17:09] Speaker 04:
But what I'm trying to understand is Kaiser says that if new documents are provided, new service documents are provided, that you're only supposed to consider those to the extent they're relevant to a matter in dispute.

[00:17:29] Speaker 04:
As of that point in time, the fact of a PTSD diagnosis was not in dispute, as the Veterans Court in this case found.

[00:17:37] Speaker 04:
The only thing that was in dispute is whether there was a service connection stressor, not whether he had sufficient stressors for PTSD generally.

[00:17:52] Speaker 02:
There was some medical evidence of PTSD, but there was VA PTSD diagnosis, such that the only thing that was missing in 2002 was the verified stressor.

[00:18:05] Speaker 02:
I think Mr. Morris conflates the evidence in the record a bit to say, yes, there is some evidence of treatment for PTSD, but the VA never made a finding that he had PTSD diagnosis in 2002.

[00:18:16] Speaker 04:
Yeah, but the Veterans Court here made it.

[00:18:17] Speaker 04:
The Veterans Court here made a factual finding that there was a

[00:18:21] Speaker 04:
a PTSD diagnosis as of 2002.

[00:18:26] Speaker 04:
Right?

[00:18:31] Speaker 02:
Well, I believe that... I'm trying to find the citation to the Veterans Court opinion where to address that, but the Veterans Court, for that purpose, I think, assumed that there

[00:18:46] Speaker 04:
It said that the RO's March 2002 decision acknowledged the current PTSD disability as of 2002.

[00:19:04] Speaker 02:
I see that, Judge O'Malley.

[00:19:06] Speaker 02:
And the Veterans Court did say that.

[00:19:12] Speaker 02:
I think, again, to the extent that this court

[00:19:16] Speaker 02:
can't re-examine the factual findings that we have.

[00:19:23] Speaker 01:
The VA, as I understand it, then conducted a subsequent medical examination in 2006 and found no PTSD?

[00:19:39] Speaker 01:
That's correct.

[00:19:46] Speaker 01:
I understand the Veterans Court to have addressed the whole question of whether the 2004 and subsequent events constituted a reopening or a reconsideration was they said that they called it a reopening but in fact they did everything that would have been required for a reconsideration.

[00:20:07] Speaker 01:
Is that your take on the Veterans Court's approach?

[00:20:13] Speaker 02:
Yes, they have the newly associated

[00:20:16] Speaker 02:
records, they examine those records, and that's sufficient under 3.156C1 to constitute reconsideration.

[00:20:27] Speaker 02:
I think the George case from the Veterans Court says it's a murky area, but certainly Blue Ball definitive case on reconsideration says that that is all that's required is the veteran is given the benefit of those service department records now being before the examiner.

[00:20:46] Speaker 02:
That is what happened here.

[00:20:48] Speaker 01:
Let me ask you a question about this, the argument that Ms.

[00:20:52] Speaker 01:
Emberlin makes about stage ratings.

[00:20:54] Speaker 01:
So let's assume that, setting aside all findings and just assume facts that he was, he did have PTSD in 19, well, as of 2000 and 2002, but then by 2006, he did not.

[00:21:13] Speaker 01:
And then subsequently,

[00:21:15] Speaker 01:
He did, in other words that his condition ebbed and flowed.

[00:21:20] Speaker 01:
What would be the appropriate way to look at his entitlement to benefits?

[00:21:27] Speaker 01:
She argues that stage ratings would be appropriate under those circumstances.

[00:21:33] Speaker 01:
And I'm saying wipe all the procedural elements out of the picture and just look at this as if these were all fixed determinations.

[00:21:45] Speaker 02:
I'm not sure that that's so easy to do, Judge Bryson, because one of the requirements for an award of benefits is a present disability.

[00:21:55] Speaker 01:
Right.

[00:21:56] Speaker 01:
And that was really what I was going to... Zemerle is saying, I think that there are stage ratings are possible, but I had understood that as a predicate for even stage ratings, you have to have a present disability.

[00:22:15] Speaker 01:
Is that right or am I?

[00:22:17] Speaker 02:
That is correct.

[00:22:18] Speaker 02:
That is one of the three quintessential requirements for benefits.

[00:22:25] Speaker 02:
One is injury incurred in service, two is a present disability, and three is a nexus or service connection as the court sometimes calls it.

[00:22:35] Speaker 01:
So if the 2008 board were to conclude that he in fact did have

[00:22:41] Speaker 01:
PTSD back in 2002, but he doesn't have it as of now, the fact that he did not have a current disability would make it impossible for the 2008 board to grant relief.

[00:22:56] Speaker 01:
Is that right?

[00:23:00] Speaker 02:
That would seem right, Judge Bryson.

[00:23:01] Speaker 02:
I don't think there's been a case that has addressed that scenario.

[00:23:05] Speaker 02:
And the tricky thing is Section 3.156C is

[00:23:11] Speaker 02:
meant to kind of put the adjudicator back in terms of looking at missing service department records.

[00:23:19] Speaker 02:
So if the veteran continuously had a present disability and then the records that were missing were associated with the file, he would get the benefits going back to that earlier effective date.

[00:23:31] Speaker 02:
But in this scenario where the disability ends,

[00:23:36] Speaker 02:
I think that one of the prerequisites of awarding any benefits wouldn't be met.

[00:23:44] Speaker 04:
My concern is that if you look at that 2006 examination, it's not really a situation where he said that the disability ended.

[00:23:53] Speaker 04:
In fact, under his analysis, he would say he never had PTSD because he says one of the primary bases for his conclusion is that they're just

[00:24:05] Speaker 04:
that the stressors identified weren't intense enough and that there was no combat stressor.

[00:24:13] Speaker 04:
So therefore, there can't be PTSD.

[00:24:16] Speaker 04:
In other words, that examination rejected the specific findings of other stressors and of the symptoms of PTSD.

[00:24:29] Speaker 04:
So it really wasn't a situation of him saying he doesn't have it presently.

[00:24:33] Speaker 04:
He said he never had it.

[00:24:36] Speaker 02:
Well, I would disagree, Judge O'Malley.

[00:24:38] Speaker 02:
I think the 2006 examination looked at the various stressors.

[00:24:43] Speaker 02:
And there's also stressors, or there's also evidence of PTSD from other sources, and this is at appendix 91.

[00:24:52] Speaker 02:
The examiner mentions prior family history of alcoholism and abuse.

[00:24:58] Speaker 02:
and suggest that the PTSD may derive from multiple sources.

[00:25:02] Speaker 02:
So I think the examiner is, he's not saying that Mr. Morse didn't at times have PTSD.

[00:25:08] Speaker 02:
What he's saying is that the service connection for PTSD from Mr. Morse's military service isn't present.

[00:25:16] Speaker 02:
And he does note the stressors.

[00:25:19] Speaker 02:
He notes that Mr. Morse at least talked about the stressors he experienced in his military service.

[00:25:27] Speaker 04:
Are you saying they found he had PTSD in 2008?

[00:25:30] Speaker 04:
Are you saying they found he didn't have it?

[00:25:35] Speaker 02:
The medical opinion said he did not have it, although I think the qualification would probably be that he didn't have it for the purposes of the diagnosis for

[00:25:50] Speaker 02:
for the benefits rating.

[00:25:51] Speaker 02:
So he didn't have PTSD from his service.

[00:25:55] Speaker 04:
That's what I'm saying.

[00:25:55] Speaker 04:
If you look at his analysis, his theory would be that he never had it for purposes of a benefit rating.

[00:26:05] Speaker 02:
Well, if you look at Appendix 94, Your Honor, his concluding statement says that it makes diagnosis of military related PTSD impossible.

[00:26:14] Speaker 04:
So I don't think he was... So that's just the service connection, not

[00:26:18] Speaker 04:
That's my problem, is that in 2008, they treat it as an actual diagnosis of no disability.

[00:26:28] Speaker 04:
But if you look at what he's saying, he's just saying there's not a service-connected stressor.

[00:26:38] Speaker 02:
I see what you're saying, Judge.

[00:26:39] Speaker 02:
I don't think that makes a difference in terms of the 2008 rating opinion, though, because

[00:26:44] Speaker 02:
even if he still is not entitled to benefits in 2008 because he either doesn't have a present disability or he doesn't have a service connected stressor.

[00:26:56] Speaker 00:
Mr. Hellman, let me bring you back to this question of what happens in 2008.

[00:27:04] Speaker 00:
Suppose we had a situation in which the board didn't mention the new service department records even though they were before it.

[00:27:15] Speaker 00:
Suppose they just didn't consider them, say hypothetically they didn't think they were relevant but they don't mention them at all in the decision.

[00:27:25] Speaker 00:
Where are we?

[00:27:26] Speaker 00:
Does that mean that the issue under 3.156C can be brought again in some later proceeding that the,

[00:27:39] Speaker 00:
2008 decision is treated as not resolving the service department retrospective analysis that would be required, where are we?

[00:27:50] Speaker 02:
Well, I think if the records weren't relevant, then you're in the Kaiser situation where the VA doesn't have to reconsider a record set.

[00:27:59] Speaker 00:
They don't say anything.

[00:28:01] Speaker 00:
They don't say anything about whether they're relevant or not.

[00:28:03] Speaker 00:
They just don't mention them at all.

[00:28:05] Speaker 00:
So we don't know on the face

[00:28:08] Speaker 00:
of the opinion why they didn't discuss them, but they just don't discuss them.

[00:28:13] Speaker 00:
Does that mean that later on the veteran can come in and say they didn't do what they had to do under 156C, so now I'm entitled to start a new proceeding?

[00:28:26] Speaker 02:
Well, I think if the veteran can show that the records weren't considered, then it's essentially that.

[00:28:33] Speaker 02:
if I may finish, it's essentially the same situation as if reconsideration never took place.

[00:28:38] Speaker 02:
Now, that would be a factual determination for, I think, the Veterans Court to make.

[00:28:43] Speaker 02:
But if there's evidence that the records were present and just not found to be significant enough to mention, then the Veterans still can't bring the claim.

[00:28:55] Speaker 02:
But if it's something that the records were associated with the claim file but then again got lost

[00:29:01] Speaker 02:
in a drawer somewhere, then it could be a situation as if those records hadn't been reconsidered.

[00:29:08] Speaker 00:
Everyone mentions the records in the briefing to the board, but the board says nothing about the records and its decision.

[00:29:14] Speaker 00:
Where are we?

[00:29:16] Speaker 02:
Then I think that if the records were noted to the board and the board didn't mention them, you'd be in the same situation.

[00:29:26] Speaker 02:
Similar situation here where the veteran would have to appeal that decision and say, well, the board didn't properly reconsider them under 3.1560.

[00:29:33] Speaker 02:
The veteran couldn't, years later, come back and say, well, they were never reconsidered.

[00:29:41] Speaker 02:
Thank you, Your Honor.

[00:29:42] Speaker 02:
I really respectfully request that the case be approved.

[00:29:46] Speaker 00:
OK, any further questions?

[00:29:48] Speaker 00:
OK.

[00:29:50] Speaker 00:
Hearing none, Ms.

[00:29:52] Speaker 00:
Zimberlund?

[00:29:53] Speaker 03:
Thank you.

[00:29:54] Speaker 03:
To respond to one of Judge Bryson's concerns, a present disability means a disability at any time the claim is pending.

[00:30:04] Speaker 03:
So, hypothetically, if a claimant files a claim in 2004, is disabled, is not disabled by 2008, the claimant still has a present disability in 2004 when the claim is filed.

[00:30:21] Speaker 03:
To respond to one of Judge O'Malley's concerns, if the 2006 examiner knew that combat had been verified, there's at least a reasonable possibility that the examiner would have found PTSD.

[00:30:38] Speaker 03:
And that's a major problem in the decision of the 2008 board.

[00:30:46] Speaker 03:
Court needs to keep in mind is the very important difference between a reopening and a reconsideration.

[00:30:53] Speaker 03:
The secretary has argued that once the board examines the records, that's enough.

[00:30:59] Speaker 03:
But it's more than just an examining of the missing records.

[00:31:06] Speaker 03:
The key difference between the reopening and a reconsideration is the dates that the VA looks at.

[00:31:12] Speaker 03:
Here, for the initial claim, the dates are 1999 to 2002.

[00:31:17] Speaker 03:
And that's not what the 2008 board was focused on.

[00:31:22] Speaker 03:
The 2008 board was focused on the 2004 claim.

[00:31:28] Speaker 03:
The secretary, in its brief, avoided taking position as to which of Mr. Morse's claims they're alleging were reconsidered in 2008.

[00:31:40] Speaker 03:
There are two possible claims.

[00:31:42] Speaker 03:
The 1999 claim or the 2004 claim.

[00:31:47] Speaker 03:
The board looked at the 2004 claim and was not concerned with the state of Mr. Morse's claim from 1999 to 2002.

[00:31:58] Speaker 03:
As held in Jones v. Wilkie, it's the original decision which must be the focus.

[00:32:05] Speaker 03:
The original denial in 2002

[00:32:10] Speaker 03:
has never been reconsidered by any VA reviewer along with the new service records of 2005, 2006, and 2010.

[00:32:23] Speaker 03:
Subsection C serves to place the veteran in a position he would have been in had the VA considered the relevant service department records before the disposition of the earlier claim.

[00:32:36] Speaker 03:
No one disputes today

[00:32:38] Speaker 03:
It looks like my time is up.

[00:32:41] Speaker 00:
Okay, unless there are further questions.

[00:32:44] Speaker 00:
Hearing none, thank you, Ms.

[00:32:46] Speaker 00:
Zimmerman.

[00:32:48] Speaker 00:
Thank you, Mr. Hellman.

[00:32:49] Speaker 00:
The case is submitted and that concludes our session for this morning.

[00:32:54] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.