[00:00:00] Speaker 05:
Our first case is Bobby George, Billy George versus McDonough, 2020, 1941, Mr. Coppin.

[00:00:19] Speaker 03:
May it please the court.

[00:00:20] Speaker 03:
Thank you, Your Honors.

[00:00:21] Speaker 03:
I appear on behalf of Joyce Billy, the surviving daughter of the appellant, Mr. George, who unfortunately passed away during the course of his appeal.

[00:00:34] Speaker 03:
This matter involves an interpretation of the regulatory scheme created by the Secretary under 38 U.S.

[00:00:41] Speaker 03:
CFR 3.156C.

[00:00:44] Speaker 03:
None of the actions taken by the Secretary after the Secretary's receipt of relevant service department records in this matter constituted a reconsideration of Mr. George's original 1997 claim for service connection for post-traumatic stress disorder.

[00:01:02] Speaker 03:
This appeal is about the process required to be performed by the secretary following his receipt of such service department records.

[00:01:10] Speaker 05:
Mr. Carpenter, you cast this as a legal issue as you must.

[00:01:15] Speaker 05:
Yes.

[00:01:18] Speaker 05:
Concerning 3.156C.

[00:01:22] Speaker 05:
But isn't it basically about Q, fact question, Q?

[00:01:28] Speaker 03:
The proceedings before the Veterans Court were in

[00:01:32] Speaker 03:
the nature of a review of a board decision that denied revision of a prior board decision.

[00:01:39] Speaker 03:
But the board decision was based upon a question of law, which the board said had no merit.

[00:01:47] Speaker 03:
Mr. George appealed to the Veterans Court a factual question about whether or not the board's decision to deny revision was based upon a misinterpretation

[00:01:59] Speaker 03:
of the provisions of 3.156c.

[00:02:01] Speaker 03:
So this is not a factual matter.

[00:02:04] Speaker 03:
This is a straight question of regulatory interpretation that is squarely within the jurisdiction of this court.

[00:02:12] Speaker 02:
But don't we need to review the Veterans Court's decision that it lacked jurisdiction to consider your primary cue claim that you argued before the Veterans Court in light of the Veterans Court's conclusion that

[00:02:29] Speaker 02:
That was a brand new Q claim, and it was unlike in character the actual Q claims you raised before the board.

[00:02:37] Speaker 03:
That is not what I'm asking this court to review.

[00:02:40] Speaker 03:
The decision below said that the reviewing judge interpreted several options as to what was in fact being presented.

[00:02:51] Speaker 02:
I guess we first have to figure out for ourselves, what can you properly argue at this point?

[00:02:58] Speaker 03:
That's correct, Your Honor.

[00:02:59] Speaker 02:
And so can you please walk us through what it is that was part of your cue claim that you actually filed in 2015 to challenge the board's 2014 decision that is properly in front of us today?

[00:03:16] Speaker 05:
What is properly in front of us today?

[00:03:17] Speaker 05:
Judge Chen, may I stop for a moment?

[00:03:18] Speaker 05:
I don't think the clock is running.

[00:03:27] Speaker 03:
The matter that's before this court is the matter that was presented to the board in the request for revision, as was the matter that was presented to the Veterans Court.

[00:03:43] Speaker 02:
it is all been about whether or not well it's your q claim let's just right let's just talk about the q claim filed in twenty fifteen challenging the board's twenty fourteen six and that what elements in that twenty fifteen q claim are you arguing today the interpretation of three point one five six c and they're in that twenty fifteen q claim is there an argument

[00:04:11] Speaker 02:
that the board in 2014 failed to properly apply 3.156C in the way that you're arguing now.

[00:04:23] Speaker 02:
My understanding is now you are arguing that the board didn't actually reconsider your original 1997 claim.

[00:04:31] Speaker 02:
But as I understand your 2015 Q claim, you are arguing things like the board in 2014 improperly considered the lay testimony,

[00:04:41] Speaker 02:
and also was too stringent in searching for a particularized onset date of PTSD before the 2003 diagnosis.

[00:04:51] Speaker 02:
So if I'm understanding your cue claim correctly, it sounds very different in character compared to what you are now arguing.

[00:05:01] Speaker 03:
Your Honor, while that is a fair statement, I do not believe that that is, as the Veterans Court determined,

[00:05:09] Speaker 03:
the correct understanding of the question of law that was being presented in the appeal to them of the denial of that revision.

[00:05:20] Speaker 03:
The question that was presented to the Veterans Court was whether or not the board in arriving at its decision to deny revision based upon the allegations that had been made.

[00:05:32] Speaker 02:
You know, when you say deny revision, the term is a little vague to me.

[00:05:36] Speaker 02:
And because we're talking about so many different board decisions and veteran court's decisions, I get lost immediately.

[00:05:44] Speaker 02:
If you can peg dates to certain things, like a 2015 board decision, a 2014 board decision, a 2013 board decision, then I'll be able to follow along what you're actually saying.

[00:05:54] Speaker 03:
I apologize, Your Honor.

[00:05:57] Speaker 03:
The 2014 board decision was challenged

[00:06:00] Speaker 03:
by a request for revision which resulted in a denial of that request for revision based upon an allegation of Q in the 2015 board decision.

[00:06:13] Speaker 03:
It was the 2015 board decision which was appealed to the Veterans Court.

[00:06:18] Speaker 03:
What was appealed to the Veterans Court was a question of law as to whether or not when the request for revision was rejected by the 2015 board decision

[00:06:28] Speaker 03:
Was that a misinterpretation of 3.15?

[00:06:32] Speaker 02:
And then there was a 2019 Federal Circuit decision that remanded that Veterans Court decision back to the Veterans Court because we had some doubts on whether the Veterans Court had jurisdiction at all to consider the actual argument you presented to the Veterans Court.

[00:06:49] Speaker 03:
That's correct.

[00:06:50] Speaker 02:
And then the Veterans Court in this 2020 decision that was now on appeal said, no, we did not have

[00:06:58] Speaker 03:
jurisdiction at after all in in considering the very issue that had come up here to the federal circuit in twenty nineteen is that right that is not the way i and understood the decision made by the veterans court the way i understood the decision by the veterans court is that it made an analysis theories under which they did and did not have jurisdiction and they decided that there was in fact jurisdiction under one of those theories

[00:07:28] Speaker 02:
as they understood it and they made a decision based upon that theory with which they made had jurisdiction and did not make a decision on the theories that they said that not in that the one thing they found that it had jurisdiction to consider was a direct review of the twenty fifteen board decision that's where to say that's correct so anything with regard to the twenty fourteen board decision uh...

[00:07:57] Speaker 02:
through a cue claim challenge was out the door.

[00:08:01] Speaker 03:
No, Your Honor.

[00:08:01] Speaker 02:
Because it found that the three things that you did argue, most of it you didn't continue to pursue.

[00:08:07] Speaker 02:
And then the new argument, the new cue claim that you argued was improperly before the Veterans Court, at least with regards to the 2014 board decision.

[00:08:21] Speaker 02:
But then it entertained a direct review possibility of any defect with the board's 2015 decision.

[00:08:30] Speaker 03:
But it is the 2015 board decision which was being appealed.

[00:08:34] Speaker 03:
It was not the 2014 board decision that was being appealed.

[00:08:38] Speaker 03:
The question was did the 2015 board decision correctly consider and apply or did they in fact misinterpret

[00:08:49] Speaker 03:
the regulatory scheme under three point one five six c that was the issue that was presented in the appeal to the veterans court originally and i believe that that was the decision that they ultimately decided to review that they had jurisdiction for because as has unfortunately involved in the context of q the specific leading require to become so uh... uh...

[00:09:19] Speaker 03:
difficult to present because there's so much subject to, as this case clearly demonstrates, to attack relative to specificity.

[00:09:30] Speaker 03:
The only allegation that needs to be made is that the evidence of record at the time of the decision, in this case, the 2014 board decision, was not made correctly in accordance with law.

[00:09:45] Speaker 03:
that there was a statute or a regulation that was not correctly applied.

[00:09:51] Speaker 03:
The board in 2014 made that error as alleged by Mr. George.

[00:09:57] Speaker 03:
The 2015 decision said that that argument, any argument about the decision was without merit.

[00:10:07] Speaker 03:
That constituted a misinterpretation of 3.156C.

[00:10:12] Speaker 03:
in order to obtain judicial review, Mr. George was entitled to a review of that question of law.

[00:10:20] Speaker 03:
And I believe he ultimately got it from the Veterans Court, and they simply got it wrong.

[00:10:26] Speaker 04:
Mr. Carpenter, the 2014 decision and process, if we look at it standalone, forget about 2015,

[00:10:36] Speaker 04:
If we consider just the 2014, would it be fair to say we don't have jurisdiction over the decision that the board made in that case?

[00:10:47] Speaker 03:
Yes, Your Honor, sure.

[00:10:48] Speaker 03:
Because it's final until revision is granted.

[00:10:52] Speaker 04:
That became final.

[00:10:53] Speaker 04:
Yes.

[00:10:54] Speaker 04:
So we have no jurisdiction.

[00:10:55] Speaker 04:
And you're saying I'm not raising the 2014 issue before you.

[00:11:00] Speaker 04:
It's only the 2015.

[00:11:01] Speaker 03:
That is correct, Your Honor.

[00:11:02] Speaker 04:
But the 2015 decision seems to me to be all fact-based, or the application of facts to law.

[00:11:11] Speaker 04:
And we don't have jurisdiction in that circumstance either.

[00:11:16] Speaker 03:
Yes, Your Honor, except that I do not believe.

[00:11:20] Speaker 04:
You add substance to your argument by relating back to the 2014 case.

[00:11:26] Speaker 04:
But we've already decided, you and I, that we have no jurisdiction over that.

[00:11:31] Speaker 04:
So you're stuck only with 2015 and showing us a legal issue in 2015.

[00:11:42] Speaker 03:
At the appendix at 155 is where the 2015 decision appears.

[00:11:57] Speaker 03:
and the conclusion of law was that the twenty fourteen board decision denying entitlement to an effective effective date earlier than september nineteen twenty thirteen for the grant of service connection was not clearly and unmistakably erroneous uh... what page are you reading i'm sorry your honor appendix one five nine in explaining that decision the board

[00:12:37] Speaker 05:
The opinion that we're reviewing says that the board in 2015 applied the correct legal principles that address the various steps taken after VA received the records, namely obtaining a retrospective medical examination considering other evidence.

[00:13:00] Speaker 03:
Yes, Your Honor.

[00:13:00] Speaker 03:
And that is a misinterpretation of 3.156C.

[00:13:05] Speaker 03:
because you don't get to the retrospective opinion until C4 in the regulatory scheme.

[00:13:13] Speaker 03:
You have to get through C1, 3, and 4 to get to 4.

[00:13:21] Speaker 03:
C1 is what is at issue in this case.

[00:13:24] Speaker 03:
And C1 requires a reconsideration of the 1997 original claim.

[00:13:31] Speaker 03:
That never happened in this case.

[00:13:34] Speaker 03:
And that was an error of law.

[00:13:37] Speaker 02:
That error of law relied upon a mis- When you say it didn't happen, can you describe specifically, mechanically, what needed to happen that did not happen when you say the word reconsider?

[00:13:51] Speaker 02:
Because it seems for the moment that I looked through the entire history, and it does look to me that the claim was reconsidered.

[00:14:01] Speaker 02:
And it did look to me like they tried to

[00:14:04] Speaker 02:
that the VA tried to go back in time to figure out what's the proper effective date and they ultimately concluded that there could not be an earlier effective date than 2003.

[00:14:15] Speaker 03:
And therein lies part of the problem, Your Honor.

[00:14:18] Speaker 02:
So just please describe to me what it is that needed to happen that did not happen.

[00:14:23] Speaker 03:
What needed to happen was that in July of 2007, at pages 57 to 62 of the record, the Secretary received

[00:14:33] Speaker 03:
relevant service department records.

[00:14:35] Speaker 03:
At that point in time, under the mandate of his own regulation, the secretary was required to reconsider.

[00:14:44] Speaker 03:
The secretary did not.

[00:14:46] Speaker 02:
When you say reconsider, you keep saying the word reconsider, but I don't understand what you think that requires, what you think that means.

[00:14:53] Speaker 03:
What I think that requires is a new adjudication of the original claim, that the 1997 claim in this case

[00:15:02] Speaker 03:
needed to have been re-adjudicated anew.

[00:15:06] Speaker 02:
So when the VA in 2007 said, okay, we've got service records that established that this person had an in-service stressor, we also have a 2003 diagnosis of PTSD.

[00:15:22] Speaker 02:
we're going to reach a conclusion that there's a service connection between this new diagnosis of PTSD and his in-service stressor way back when.

[00:15:32] Speaker 02:
And so therefore, this person is entitled to disability benefits of a certain rating for PTSD.

[00:15:40] Speaker 02:
Why wasn't that a reconsideration in your view?

[00:15:43] Speaker 03:
Because it was a reopening determination

[00:15:46] Speaker 02:
under the provisions of 50 I understand you want to use different words well there's a thing called reopen over here for three point one five six and then there's another thing called reconsider for three point one five six C I'm trying to figure out as a substantive matter as a mechanical matter what is really the difference between the two in this context and I'm thinking right now about our Jones opinion yes the difference is

[00:16:11] Speaker 03:
what is done by the secretary.

[00:16:14] Speaker 03:
And what is done by the secretary under the mandate of 3.156C is, in the words of the regulation, if the VA rescinds it.

[00:16:23] Speaker 02:
Instead of the original claim that was denied.

[00:16:25] Speaker 02:
Yes, I understand that.

[00:16:26] Speaker 02:
But I'm trying to figure out how would it have looked any different than what actually happened.

[00:16:33] Speaker 03:
With respect, Your Honor, the concluding phrase is notwithstanding paragraph A.

[00:16:40] Speaker 02:
What happened here was they continued under paragraph A and ignored the mandate of paragraph C. That cannot be lawfully done under the correct... You keep saying this, but I don't understand what they needed to do differently than what they actually did when they found that your client was entitled to benefits because the new PTSD diagnosis was in fact service-connected

[00:17:06] Speaker 03:
uh... to an in-service stressor well you you're not mechanically different needed to happen i don't understand what mechanically different needed to happen was instead of looking at the narrow window from the date of reopening was given from the date of request for reopening in two thousand and three they needed to look at the full period of time from nineteen ninety seven that didn't happen when the decision review officer made his decision in two thousand and seven

[00:17:36] Speaker 03:
And the record confirms that although there is a reference to receipt of those services.

[00:17:41] Speaker 02:
Is there some evidence that was overlooked?

[00:17:44] Speaker 02:
I mean, I don't understand what was overlooked.

[00:17:47] Speaker 03:
Well, what was overlooked is the right to an adjudication of the 1997 claim.

[00:17:54] Speaker 03:
What was adjudicated in 2007 was the 2003 claim.

[00:17:59] Speaker 03:
Those are different claims.

[00:18:00] Speaker 02:
You don't think the VA was trying to figure out if there was a way to get the benefits effective date back to 1997?

[00:18:07] Speaker 03:
No, Your Honor.

[00:18:09] Speaker 02:
That's exactly what it was trying to do when it ordered the retroactive medical evaluation to see if there was a way to get the PTSD diagnosis confirmed with some relevant amount of certainty back to an earlier date before 2003.

[00:18:24] Speaker 03:
But that was done in 2013 after an appeal repeatedly to the board where the board kept sending the case back to the VA to re-adjudicate.

[00:18:36] Speaker 03:
When they re-adjudicated after the second remand in 2005 was the second remand, the board made a finding only

[00:18:52] Speaker 03:
that new and material evidence had been received under 3.156A, and that the claim was reopened.

[00:19:00] Speaker 03:
It could only be reopened from 2003 under paragraph A. It could not be returned.

[00:19:07] Speaker 05:
The time has expired.

[00:19:10] Speaker 05:
We'll give you two minutes for a bottle.

[00:19:12] Speaker 03:
Thank you.

[00:19:14] Speaker 05:
Ms.

[00:19:14] Speaker 05:
Finning.

[00:19:34] Speaker 00:
May it please the Court, on behalf of the Secretary, we ask that the Court dismiss the appeal for lack of jurisdiction.

[00:19:41] Speaker 00:
The veteran through his daughter in this case is appealing the 2020 Veterans Court decision, and as the panel intimated in questions to my opposing counsel, the veteran is not ultimately challenging any of the holdings of the Veterans Court or the 2015 Board.

[00:19:59] Speaker 00:
He purports to be challenging the 2015 board, but in substance is actually challenging actions of the 2014 board, the 2013 board and actions of the VA in 2007, leading up to those 2013 and 2014 boards.

[00:20:14] Speaker 00:
All of that is final and unappealable and would be properly before this court only through a Q claim, which pursuant to this court prior remand to the veterans court, the veterans court determined

[00:20:26] Speaker 00:
would require a distinct cue claim, which was not present on this record.

[00:20:31] Speaker 00:
Notably, the veteran now before this court does not challenge that aspect of the Veterans Court's decision.

[00:20:37] Speaker 00:
So in March 2020, the Veterans Court found a distinct cue claim was required.

[00:20:41] Speaker 00:
That is not part of the appeal in this case.

[00:20:44] Speaker 00:
So that decision would also stand.

[00:20:49] Speaker 00:
even if this court should find that some sliver of jurisdiction continues to exist that will sustain an appeal in this court, we submit that it should be dismissed, the appeal should be dismissed in any event, because as I mentioned, what is actually argued here is not the actions of the 2015 board, but actions of the earlier boards and actions of the VA even prior to that.

[00:21:12] Speaker 04:
I think you may have heard counsel

[00:21:15] Speaker 04:
concede or accept that we would have no jurisdiction over the 2014 decision, right?

[00:21:23] Speaker 04:
Was there anything in the 2015 decision that's different that should have been argued or connected to the 2014 arguments?

[00:21:34] Speaker 00:
No.

[00:21:34] Speaker 00:
So the 2015 board sat for a very specific purpose.

[00:21:38] Speaker 00:
It sat to consider the veterans 2015 Q motion

[00:21:44] Speaker 00:
which raised three evidentiary-based challenges to the 2014 board.

[00:21:49] Speaker 04:
Was that that argument, the Q argument, ever before the board?

[00:21:57] Speaker 00:
Yes.

[00:21:58] Speaker 00:
So the 2014 board was the sort of seminal board that made the final determination of service connection and the effective date after we submit reconsideration and retrospective

[00:22:11] Speaker 00:
So the 2014 board decision is the substantive seminal decision.

[00:22:17] Speaker 00:
Following that 2014 board decision, a year passed, it became final and unappealable.

[00:22:24] Speaker 00:
After that year mark, the only way to challenge the 2014 board was through a cue motion.

[00:22:31] Speaker 00:
The veteran filed a Q motion in 2015, but that Q motion by his own admission, both in briefs in this court and before the veterans court raised three very distinct Q based challenges.

[00:22:44] Speaker 05:
Fact questions.

[00:22:45] Speaker 00:
Fact questions.

[00:22:46] Speaker 00:
The first was the challenge, the 2014 board's handling of the veterans lay statements.

[00:22:53] Speaker 00:
It's an evidence based challenge.

[00:22:55] Speaker 00:
It also challenged as Judge Chen noted earlier,

[00:22:59] Speaker 00:
had two challenges to the specificity required to determine the onset of PTSD, which were two other evidence-based challenges.

[00:23:09] Speaker 00:
And as the 2015 board concluded in reviewing those two challenges, in substance, they were challenges to the weight, the weighing the weight that the 2014 board

[00:23:25] Speaker 00:
gave to those matters.

[00:23:27] Speaker 00:
It was a purely evidence-based challenge.

[00:23:29] Speaker 00:
What we are now talking about is a procedure-based challenge.

[00:23:34] Speaker 00:
So when the veteran came up to this court two years ago, three years ago now, the court found, hey, wait a second.

[00:23:44] Speaker 00:
This sounds different.

[00:23:45] Speaker 00:
We're going to remand to the veteran's court to figure out if this requires a distinct Q claim, this procedure-based claim.

[00:23:52] Speaker 05:
And he calls that

[00:23:54] Speaker 05:
A legal question.

[00:23:55] Speaker 00:
He calls it a legal question, yes.

[00:23:57] Speaker 00:
A legal question can certainly be directly appealed within the timeline for appeal, or if outside the time for direct appeal, through Q. In substance here, we have a challenge not to the 2015 board, but to the 2014 board, the 2013 board, 2007, and so on, all the dates that we just talked about.

[00:24:18] Speaker 01:
The Veterans Court, though, did something a little funny when it then

[00:24:25] Speaker 02:
took on a review of the 2015 board decision to see if the 2015 board decision correctly applied the legal principles of 3.156C.

[00:24:37] Speaker 02:
So in a way, I mean, the Veterans Court appeared to open the door and address and pass on the question of whether the board understood

[00:24:50] Speaker 02:
that the VA needed to do a reconsideration under 3.156C and not a classic reopening for new material evidence under 3.156A.

[00:25:03] Speaker 00:
So this court, I think, can view that discussion, the Veterans Court decision, in any number of ways.

[00:25:08] Speaker 00:
Arguably, it is dicta.

[00:25:11] Speaker 00:
It was not necessary to the decision.

[00:25:13] Speaker 00:
The Veterans Court, perhaps in an effort to be thorough given the complicated procedural posture of this case, gave some arguments in the alternative.

[00:25:22] Speaker 00:
I don't think it's necessary to the decision here, but even if we say hypothetically,

[00:25:29] Speaker 00:
The veteran's court was right to consider this sort of subsidiary question of the correct application of 3.156.

[00:25:37] Speaker 00:
And now the veteran has directly appealed that sliver of an issue to this court such that the court would have jurisdiction.

[00:25:44] Speaker 00:
The appeal still fails because what the veteran's court was considering in that sliver of a discussion was whether the 2015 board correctly applied 3.156 C.

[00:26:00] Speaker 00:
That's not what the veteran is now arguing in this court.

[00:26:05] Speaker 00:
He's not actually challenging the veterans court's discussion of 3.156C in the 2015 board, right?

[00:26:14] Speaker 00:
He's jumped back in time.

[00:26:17] Speaker 00:
to argue now that actually the 2013 board didn't have jurisdiction and the matter should have gone someplace else procedurally.

[00:26:24] Speaker 00:
The arguments are different.

[00:26:27] Speaker 00:
So even if this court has jurisdiction to consider that sort of unique discussion the panel points to in the Veterans Court decision, that's not what the veteran is now raising.

[00:26:40] Speaker 00:
In this court, it's a different issue.

[00:26:42] Speaker 00:
So again, the appeal should be dismissed.

[00:26:48] Speaker 00:
Further in the alternative, if the court is going to consider jurisdiction or entertain this appeal in substance, we would submit that there is no failure of reconsideration.

[00:27:01] Speaker 00:
My learned colleague is focused on what happened in 2007, but this case is a long procedural posture that goes well past 2007.

[00:27:13] Speaker 00:
There was not

[00:27:18] Speaker 00:
using the buzzword, reconsideration of 3.156C in 2007.

[00:27:24] Speaker 00:
But the parties recognized that at the time, right?

[00:27:27] Speaker 00:
The veteran filed a notice of disagreement.

[00:27:29] Speaker 00:
It then proceeded up the steps until reconsideration was required and remanded.

[00:27:37] Speaker 00:
And then by 2013, that reconsideration took place.

[00:27:41] Speaker 00:
It was a retrospective medical opinion.

[00:27:46] Speaker 00:
And the VA, not the board, engaged in that reconsideration.

[00:27:53] Speaker 00:
Let me just pull up the timeline here.

[00:27:57] Speaker 00:
So in 2013, the 2013 board remanded to the ratings officer for a retrospective opinion of when the veteran... Joint motion to remand, right?

[00:28:07] Speaker 00:
It was a joint motion to remand, right.

[00:28:09] Speaker 01:
So they wanted it to.

[00:28:10] Speaker 00:
They wanted it to, which we also point out in terms of considering ultimately

[00:28:15] Speaker 00:
on the merits if there's any prejudice here.

[00:28:17] Speaker 00:
Doctrines like estoppel and waiver would preclude the veteran from now challenging on appeal something that he asked for and got earlier in the proceedings.

[00:28:31] Speaker 00:
But in any event, the reconsideration, that substantive reconsideration required by 3.156C is apparent in the record.

[00:28:40] Speaker 00:
There was a development of the claim in 2007 after the service

[00:28:45] Speaker 00:
the new service records were affiliated, there was again development of the claim and an exercise of the duty to assist in 2013, such that by the time we get to 2014 and the board is again considering an appeal, the board explains, look at all of the evidence we've considered to be considered.

[00:29:05] Speaker 00:
They've considered lay statements,

[00:29:07] Speaker 00:
from the veteran.

[00:29:08] Speaker 00:
They consider private treatment records, they consider Social Security Administration records, VA exams, C&P exams, a retrospective medical opinion, and specifically in 2014, the board considered whether or not the duties to notify and the duties to assist were satisfied and concluded that they were, consistent with 3.156C.

[00:29:34] Speaker 00:
To the extent that the

[00:29:36] Speaker 00:
The appellant now is arguing that there was some sort of misinterpretation between, or application in section 3.156C that somehow C1 was skipped and they went straight to C3.

[00:29:50] Speaker 00:
There is nothing in the regulation that requires, as the appellant would suggest, that the retrospective medical opinion happens only after all of C1

[00:30:01] Speaker 00:
is adjudicated.

[00:30:02] Speaker 00:
This is a process.

[00:30:03] Speaker 00:
It's a holistic process.

[00:30:05] Speaker 00:
The retrospective medical opinion is meant to put the veteran in the position he or she would have been in when the original claim was adjudicated with the service records that were subsequently found.

[00:30:19] Speaker 00:
The VA doesn't want to prejudice the veteran if there were service records that should have been part of the file that weren't.

[00:30:28] Speaker 00:
If we find new records and we associate them after denying an original claim, we go back and reconsider the original claim.

[00:30:35] Speaker 00:
A retrospective medical opinion would be part and parcel of that.

[00:30:39] Speaker 00:
I would also say that Helen's reading of subsection C3 as being somehow a separate step apart from C1 and only after would not actually make sense in practice, right?

[00:30:53] Speaker 00:
Because if C1 required a reconsideration without a

[00:30:57] Speaker 00:
retrospective medical opinion, and the evidence wasn't there to support service connection, you'd never get to C3.

[00:31:06] Speaker 00:
You'd never get to the retrospective medical opinion.

[00:31:09] Speaker 00:
That's there to help develop the claim and to put the veteran back in the position that they would have been in had there not been this late addition of service department records.

[00:31:20] Speaker 00:
I'll also point out that

[00:31:23] Speaker 00:
There is no procedural requirement that somehow C3 comes later because the VA always has the ability and the discretion to require any kind of medical opinion, quote, when necessary to make a decision on a claim.

[00:31:38] Speaker 00:
So that's within the context of 3.156C, but any other context as well.

[00:31:44] Speaker 00:
And that statutory citation is 38 USC 5103A D1 and 38 CFR 3.159

[00:31:52] Speaker 00:
C4 little i. So we would submit that this argument about skipping C1 and going to C3 is a red herring.

[00:32:01] Speaker 00:
But in any event, even if we're still further in the alternative, the court were to find that there was a procedural error somewhere in this process.

[00:32:12] Speaker 00:
The veteran has not carried their burden to establish that the error

[00:32:21] Speaker 00:
But for the error, the outcome would have been any manifestly different than it was, as would be required for Q, or prejudicial, as would be required for non-Q error.

[00:32:34] Speaker 00:
Because at the end of the day, the veteran received service connection for PTSD and received the date of entitlement to which he was entitled pursuant to 3.156C3,

[00:32:51] Speaker 00:
the later date of either the original claim, 1997, or 2003, the first evidence of PTSD.

[00:32:59] Speaker 00:
There is no competent evidence in the record to support any earlier finding of PTSD.

[00:33:07] Speaker 00:
As the various boards articulated, there is some passing evidence that there were other health conditions prior to 2003, but the VA was well within its discretion to find that 2003 was the

[00:33:20] Speaker 00:
first evidence of onset.

[00:33:24] Speaker 00:
For those reasons, we ask first and foremost that this court dismiss the appeal for lack of jurisdiction.

[00:33:30] Speaker 00:
If this court is inclined to accept jurisdiction on some aspect of the appeal, we submit that the Veterans Court decision should be affirmed.

[00:33:39] Speaker 05:
Thank you, Ms.

[00:33:39] Speaker 05:
Finnan.

[00:33:41] Speaker 05:
Mr. Carpenter has two minutes to a bottle.

[00:33:50] Speaker 03:
May I please the court?

[00:33:52] Speaker 03:
I direct the court's attention to appendix at 167.

[00:33:55] Speaker 03:
That is page 10 of the 2015 board decision.

[00:34:00] Speaker 03:
In the first full paragraph on the page, after the sentence that says what the moving party is not asserting, the board says, rather, it is the moving party's contention.

[00:34:13] Speaker 03:
that the September 2014 decision contains Q because it, quote, imposed burdens that require the provisions of 38 CFR 3.156 C. As discussed above, however, the arguments advanced in support of that contention amount to nothing more than a disagreement with how the facts were weighed and evaluated the evidence.

[00:34:38] Speaker 03:
Furthermore, it is not shown that if the board phrased its analysis in terms of

[00:34:43] Speaker 03:
quote, supported adequately by medical evidence, parens as stated in 3.156C, closed parens, that the outcome in this case would have been manifestly different.

[00:34:56] Speaker 03:
That was the question of law that we presented to the Veterans Court in the first instance.

[00:35:02] Speaker 03:
He had a right to challenge the board decision in 2015.

[00:35:08] Speaker 03:
His challenge to the Veterans Court was a legal question.

[00:35:12] Speaker 03:
A legal question in which the board then relied upon its own misinterpretation of that regulation.

[00:35:20] Speaker 03:
This is not about a re-examination of these prior decisions and proceedings.

[00:35:26] Speaker 03:
It's to use those prior proceedings to put them into a context.

[00:35:31] Speaker 03:
And the context is that this gentleman filed in 1997 didn't get his service records into the record until 2007.

[00:35:41] Speaker 03:
He ended up with a 2003 effective date.

[00:35:45] Speaker 03:
Effectively, the VA denied him six years worth of benefits because they never re-adjudicated his 1997 claim.

[00:35:54] Speaker 03:
Thank you very much, Your Honor.

[00:35:57] Speaker 05:
Thank you, both counsel.

[00:35:59] Speaker 05:
The case is submitted.