[00:00:00] Speaker 04:
Our next case on the docket is 21-1878, Burns v. McDonald.

[00:00:09] Speaker 04:
Mr. Dogeke, are you ready to begin?

[00:00:12] Speaker 04:
And did I say your name correctly?

[00:00:14] Speaker 04:
Dohacus, Your Honor.

[00:00:15] Speaker 04:
Dohacus.

[00:00:16] Speaker 04:
Got it.

[00:00:17] Speaker 04:
Thank you.

[00:00:19] Speaker 04:
Please proceed when you're ready.

[00:00:20] Speaker 04:
Thank you, Your Honor.

[00:00:21] Speaker 01:
May it please the court, Kennedy Dohacus, for the appellant, Julia Burns.

[00:00:26] Speaker 01:
We are here today because the VA willfully destroyed the only evidence that can prove or disprove whether Mrs. Burns was entitled to toll the time to file her application for DIC benefits when her husband died in November of 2000.

[00:00:40] Speaker 04:
I thought that the VA was agreeing that that request for a flag existed and taking that as true, that a crest had been made.

[00:00:53] Speaker 04:
So what does it matter

[00:00:55] Speaker 04:
that that document no longer exists if everybody agrees that it was submitted?

[00:01:02] Speaker 01:
The reason it matters, Your Honor, is because the VA has promulgated two regulations.

[00:01:09] Speaker 01:
The first is 3.150, which says, when notified of a veteran's death, the VA has an obligation to forward for execution an application for benefits and tell that potential applicant

[00:01:23] Speaker 01:
the time that they have to file the application when there is an apparent entitlement to benefits.

[00:01:31] Speaker 04:
And so the reason... They agree though that there is a letter that was submitted that informed them of Mr. Burns' death, but that it was not apparent that he was entitled to

[00:01:45] Speaker 04:
any sort of compensation.

[00:01:50] Speaker 04:
So they're not relying on the failure of Ms.

[00:01:55] Speaker 04:
Burns to notify them of Mr. Burns' death.

[00:01:58] Speaker 01:
No, Your Honor.

[00:02:00] Speaker 01:
But when we look at whether there is an apparent entitlement to benefits, not only do we look at whether the veteran may or may not have been receiving benefits, which if he were, she would have been entitled to at least the last month's benefits,

[00:02:14] Speaker 01:
And that issue, by the way, is not before the court.

[00:02:18] Speaker 01:
But also they have to look at the communication from Mrs. Burns.

[00:02:22] Speaker 01:
in conjunction with the rest of the record to determine whether that raised or demonstrates an apparent entitlement to benefits.

[00:02:31] Speaker 04:
You think that that letter may have said something about his medical conditions?

[00:02:37] Speaker 01:
We don't know what it says, Your Honor, and that's the crux of the issue.

[00:02:40] Speaker 01:
The VA destroyed it, and so now the VA is simply guessing that it said nothing.

[00:02:46] Speaker 04:
Isn't it like a form letter?

[00:02:48] Speaker 01:
There is a form involved, Your Honor, when requesting a burial flag.

[00:02:53] Speaker 01:
And then there was also a notification of his death.

[00:02:55] Speaker 01:
We don't know what form that took.

[00:02:58] Speaker 01:
It could have been just the application, or it could have been a separate letter.

[00:03:02] Speaker 01:
It could have been any amount of information that Mrs. Burns put in that notification.

[00:03:09] Speaker 01:
And again, we don't know.

[00:03:11] Speaker 01:
And the VA is simply guessing and assuming that it said nothing important.

[00:03:17] Speaker 01:
But we have to have that evidence and they destroyed it when they initially adjudicated her claim for benefits.

[00:03:24] Speaker 01:
Sometime after 2012, they can't even tell us when that happened.

[00:03:28] Speaker 01:
Presumably, as best as I can tell, it looks like when they granted her claim, they sent it for scanning.

[00:03:34] Speaker 01:
And then after that point, it was destroyed.

[00:03:37] Speaker 01:
The decision that granted her benefits off the 2012 application doesn't mention it, doesn't tell us anything about it.

[00:03:45] Speaker 01:
And by the way, just in my experience, those kinds of forms are kind of kept in separate locations, at least in the paper record world.

[00:03:55] Speaker 01:
Whereas today, a lot of those will be found in the electronic world.

[00:04:01] Speaker 02:
Is the information in electronic form now?

[00:04:06] Speaker 01:
No, Your Honor.

[00:04:06] Speaker 01:
And that's the issue.

[00:04:08] Speaker 01:
The board made a favorable finding that she notified the VA of his death and requested a burial flag.

[00:04:14] Speaker 01:
which we know, based on their regulations, 3.1p, that it has to be a written request.

[00:04:21] Speaker 01:
And she had to have notified them in some way, presumably in a written form as well.

[00:04:28] Speaker 01:
That is not in the electronic record.

[00:04:31] Speaker 01:
The government, the VA, has not pointed to that.

[00:04:34] Speaker 01:
We cannot find that.

[00:04:36] Speaker 01:
the governments in their argument asserts that it simply destroyed a duplicate record.

[00:04:42] Speaker 01:
But a duplicate has to also exist in original form.

[00:04:46] Speaker 01:
It's not in the electronic record.

[00:04:47] Speaker 02:
Let me ask you another question.

[00:04:49] Speaker 02:
The ultimate issue here is apparent entitlement.

[00:04:53] Speaker 02:
And the government argues in its brief that we lack jurisdiction to address that issue because it represents an application of law to factor a straight fact determination.

[00:05:04] Speaker 02:
And you did not respond to that in your reply brief.

[00:05:09] Speaker 02:
Do you have a response to it now?

[00:05:12] Speaker 01:
Your Honor, the response is that by application of the doctrine of spoliation, it creates a presumption under law that as a matter of law, this court must presume, or the law presumes, that the destroyed records demonstrates her apparent entitlement to benefits.

[00:05:31] Speaker 01:
So there's no fact-finding involved.

[00:05:33] Speaker 01:
The doctrine of exfoliation, as we understand it, is a legal presumption, just like any of the others that exist, that whatever was in the record, the destroyed record, is presumed to be in her favor.

[00:05:50] Speaker 01:
And that's really what we're... Your Honor?

[00:05:53] Speaker 04:
I was just going to ask, can you remind me what the ruling was below on the doctrine of exfoliation?

[00:05:58] Speaker 01:
At the Veterans Court or at the Board, Your Honor?

[00:06:02] Speaker 01:
Well, the board did not address it, and the Veterans Court likewise did not address it.

[00:06:06] Speaker 01:
Was it raised before then?

[00:06:08] Speaker 01:
Yes, Your Honor.

[00:06:09] Speaker 01:
We raised it to the board in our briefing.

[00:06:16] Speaker 01:
And that is an appendix starting on page 27 of the appendix.

[00:06:24] Speaker 01:
We also

[00:06:25] Speaker 01:
They very thoroughly raised it to the Veterans Court, although we don't have that in the appendix.

[00:06:33] Speaker 01:
The Veterans Court passed on it because they asserted that because this is in the context of Q, there's really no reason for us to address it.

[00:06:42] Speaker 01:
But we did raise it to the Board of Veterans' Appeals, and the Veterans Court did not rule on it.

[00:06:49] Speaker 03:
Do you have cases where the Veterans Court or this court considered spoliation issues in the context of Q?

[00:06:55] Speaker 01:
There are none, Your Honor.

[00:06:59] Speaker 01:
And so this is really the crux of it, that they destroyed the only evidence.

[00:07:05] Speaker 01:
We don't know what it is.

[00:07:07] Speaker 01:
It can as likely be in her favor and demonstrate apparent entitlement to benefits as it cannot.

[00:07:12] Speaker 01:
But again, the VA has to be held accountable for their willful destruction of the record.

[00:07:20] Speaker 02:
What exactly is the record that was destroyed?

[00:07:22] Speaker 02:
I wanted to get a firm fix on that.

[00:07:26] Speaker 01:
Again, Your Honor, we don't know.

[00:07:27] Speaker 01:
We know that it at least included two things.

[00:07:30] Speaker 01:
One, a request for a burial flag, which would have been on their form.

[00:07:35] Speaker 01:
We have been unable to identify or locate that version of the form that was used in 2000, but it probably looks substantially like it does today.

[00:07:45] Speaker 01:
The other is a notification of death.

[00:07:48] Speaker 01:
We don't know, again, what form that included.

[00:07:52] Speaker 01:
Because it was included with the request for the barrel flag, we can assume, I think, reasonably that it was in some kind of written form.

[00:08:02] Speaker 01:
It could have been as part of the application for the Fair Reflection.

[00:08:05] Speaker 04:
Do you think that it could have said that would have resulted in the VA satisfying the statute of having apparent entitlement to benefits at the time, especially given that the statute that would have said issue, I guess the presumption regarding Vietnam veterans that said issue here

[00:08:30] Speaker 04:
did not cover ischemic heart disease at the time of his death.

[00:08:37] Speaker 01:
There are any number of benefits that would have been available aside from the presumption on herbicide exposures.

[00:08:47] Speaker 04:
Could you give us a little bit more detail about what you think that notice of death could have said about his condition that would give this apparent entitlement

[00:08:56] Speaker 01:
Well, it could have said, one, that she, don't forget that as a wartime veteran, the surviving spouse would be entitled to a pension benefit as well.

[00:09:06] Speaker 01:
And the Veterans Court's case law, and I think many of the regulations, treat a request for pension as a request for compensation for the survivor as well.

[00:09:15] Speaker 01:
So she could have said,

[00:09:17] Speaker 01:
Look, my husband's passed.

[00:09:19] Speaker 01:
I relied on him for income.

[00:09:20] Speaker 01:
I no longer have income.

[00:09:22] Speaker 01:
And if she meets, that would demonstrate an apparent entitlement to a pension benefit, which is income-based and based on a veteran's wartime service status.

[00:09:33] Speaker 01:
So she could have communicated that.

[00:09:36] Speaker 04:
But that's not what you're seeking here, right?

[00:09:38] Speaker 01:
Well, Your Honor, no.

[00:09:40] Speaker 01:
We're not asking for pension.

[00:09:42] Speaker 01:
What we're asking for is that

[00:09:46] Speaker 01:
the presumption that whatever she communicated demonstrated an apparent entitlement to benefits so that the VA was required to forward her an application.

[00:09:56] Speaker 01:
That's it.

[00:09:57] Speaker 01:
They could have forwarded her an application, she could have applied or not, and then been granted or denied.

[00:10:05] Speaker 03:
What evidence do you have that the destruction is actually willful?

[00:10:09] Speaker 01:
The letter that they sent your Honor,

[00:10:14] Speaker 01:
but there was you're not saying there was any malevolent intent no no it wasn't done for the purpose of hiding anything uh... but the case law doesn't require uh... the case law on on the school expoliation requires only that it be that it had a culpable state of mind exists when b a axon quoting here from residential funding knowingly even without intent to breach of duty to preserve or negligent

[00:10:44] Speaker 01:
And their letter to me when I requested a copy of the records very clearly demonstrates, and that's on page 26 of the appendix, that they destroyed it.

[00:10:57] Speaker 01:
They said so.

[00:10:58] Speaker 01:
A review of the record system indicates the Vectron's original claims folder was sent to records management system sometime in 2012.

[00:11:06] Speaker 01:
However, they advise the folder has been destroyed.

[00:11:10] Speaker 01:
And the only available records are in the electronic file.

[00:11:12] Speaker 04:
Is the determination of whether the doctrine of spoliation applies a legal determination?

[00:11:18] Speaker 04:
I think it might be an application of law and fact.

[00:11:24] Speaker 01:
I think it's a legal presumption, Your Honor.

[00:11:28] Speaker 04:
In determining, I understand it might be a legal presumption.

[00:11:32] Speaker 04:
But the question of whether spoliation applies, that's a question of application of law and fact, right?

[00:11:42] Speaker 01:
You mean in so far as whether the records were destroyed?

[00:11:45] Speaker 04:
Yes, whether we should apply.

[00:11:47] Speaker 04:
You're asking us to apply the doctrine of spoliation, but I think that might be an application of law to fact, which you're asking us to determine.

[00:11:55] Speaker 01:
To the extent that it is, Your Honor, then we would ask that you remand back to the Veterans Court because they did not address this issue.

[00:12:02] Speaker 01:
And I think that the legal ruling we can get from

[00:12:05] Speaker 01:
from this court today is that expoliation would apply, could apply in acute context, and that the Veterans Court needs to now go back.

[00:12:16] Speaker 01:
And again, there's a lack of both the Veterans Court and the board just plainly ignoring our arguments and saying, well, it's too hard.

[00:12:30] Speaker 01:
It was what I read the Veterans Court willing to say.

[00:12:32] Speaker 01:
So we're not going to do it.

[00:12:34] Speaker 01:
And so, again, to the extent that there is any law to fact of whether, in this case, it applies, we would ask that you order the Veterans Court to apply it and make a ruling that we could make a ruling on that, Your Honor.

[00:12:50] Speaker 04:
OK.

[00:12:50] Speaker 04:
Your injury, butthole time.

[00:12:51] Speaker 04:
Yes, Your Honor.

[00:12:52] Speaker 01:
Are you going to save it?

[00:12:53] Speaker 04:
Yes, Your Honor.

[00:12:53] Speaker 01:
OK.

[00:12:54] Speaker 04:
Thank you.

[00:12:55] Speaker 04:
OK.

[00:12:55] Speaker 04:
Mr. Carhart, I hope you can hear me.

[00:12:57] Speaker 04:
Are you please proceed when you're ready?

[00:13:00] Speaker 00:
I can hear you, Your Honor.

[00:13:03] Speaker 00:
May it please the court?

[00:13:04] Speaker 00:
Mrs. Burns' appeal should be dismissed, or alternatively, the Veterans Court's decision should be affirmed.

[00:13:11] Speaker 00:
Mrs. Burns' husband died of ischemic heart disease in 2000.

[00:13:15] Speaker 00:
According to the board's fact-finding, Mr. Burns didn't apply for VA benefits during his lifetime.

[00:13:20] Speaker 00:
But because of a 2010 regulation that created a presumption of service connection for Vietnam veterans who suffer from ischemic heart disease, Mrs. Burns was awarded dependency indemnity compensation when she applied for it in 2012.

[00:13:34] Speaker 00:
Mrs. Burns received a retroactive award dating back one year before her application pursuant to Section 5110 G, which governs awards made pursuant to liberalizing changes like the 2010 regulation.

[00:13:47] Speaker 00:
Mrs. Burns cannot show

[00:13:49] Speaker 00:
that the skew challenge she raises requires that her effective date be earlier than it was.

[00:13:58] Speaker 00:
First, this court doesn't possess jurisdiction to entertain Mrs. Burns' appeal.

[00:14:02] Speaker 00:
This court explained in Westbury what the phrase apparent entitlement means.

[00:14:07] Speaker 00:
The Veterans Court relied on that definition in adjudicating Mrs. Burns' appeal.

[00:14:11] Speaker 00:
Mrs. Burns hasn't raised any challenges about the

[00:14:16] Speaker 03:
Can you also address whether or not there's jurisdiction over the spoliation issue that was just being discussed with opposing counsel?

[00:14:24] Speaker 00:
So what the Veterans Court said essentially is A, the violation of section 3.150 cannot be due in any event because it's analogous to a duty to assist violation, which this court held in Cook can't be a basis for Q. In addition,

[00:14:46] Speaker 00:
the Veterans Court also affirmed the board's decision that essentially it would have been harmless error.

[00:14:52] Speaker 00:
Any error that was made with respect to Mrs. Burns' files would have been harmless error in the sense that she can't show with outcome determinative.

[00:15:02] Speaker 00:
And that is so because of the nature of 3.150, which both the board and the Veterans Court discussed.

[00:15:10] Speaker 00:
So 3.150

[00:15:13] Speaker 00:
makes the duty to forward an application contingent on the veteran having a parent entitlement or the claimant having a parent entitlement or entitlement to DIC battles.

[00:15:26] Speaker 00:
At no point has Mrs. Burns given any reason that the information that might have been in that burial flag application could have changed the result

[00:15:38] Speaker 00:
The reason is, first, as the court has noted, the reason Mrs. Burns received DIC benefits is because ischemic heart disease was made presumptively service connected in 2010, which was long after the 2000 or 2001 burial flag application would have been submitted.

[00:15:56] Speaker 00:
And second, the only other way in which she could have shown entitlement to DIC benefits would be

[00:16:06] Speaker 00:
through 3.22, 38 CFR 3.22, which we discussed in our brief, which applies only when the veteran has applied for benefits during his lifetime, which Mrs. Burns herself said in her application he didn't do.

[00:16:21] Speaker 00:
So those are the ways in which DIC, one can show apparent entitlement to DIC benefits.

[00:16:28] Speaker 00:
So whatever information the burial flag application would have contained, it wouldn't have been relevant to Mrs. Burns' claim.

[00:16:35] Speaker 00:
Now, what Mr. Farnes' counsel says in his oral argument today, which I believe was the first time he raised this possibility, that it might have included some information about her income that would have entitled her to a pension benefit.

[00:16:54] Speaker 00:
Now, that's pure speculation, but even putting that aside, that might have led VA to have a duty to send her an application for pension benefits, but that's a distinct

[00:17:06] Speaker 00:
duty from the duty to forward the DIC application.

[00:17:09] Speaker 00:
So that's our first argument.

[00:17:12] Speaker 00:
And for the same reasons that that keeps the court from possessing jurisdiction over this appeal

[00:17:20] Speaker 00:
It also leads to, if the court does find that it possesses jurisdiction, the result that the Veterans Court's decision should be affirmed on the merits.

[00:17:30] Speaker 00:
Excuse me.

[00:17:32] Speaker 02:
Mr. Kohart, I understood.

[00:17:35] Speaker 02:
Maybe I was wrong.

[00:17:36] Speaker 02:
that Judge Cunningham was looking for your views on whether we have jurisdiction to consider the spoliation issue.

[00:17:44] Speaker 02:
Maybe I'm wrong, but I thought that was what she was interested in.

[00:17:47] Speaker 02:
What is your response to whether we have jurisdiction to address the spoliation issue?

[00:17:54] Speaker 00:
So in essence, Your Honor, to oil it down, the Board or the Veterans Court found that any error related to Mrs. Burns was harmless error.

[00:18:05] Speaker 00:
because it wouldn't have been outcome determinative.

[00:18:07] Speaker 00:
So in that sense, the Veterans Court's polling is premised on a finding that exfoliation would not have affected the outcome of this appeal.

[00:18:18] Speaker 00:
Now, if the court disagrees with that, the same arguments, the same response I just gave to Judge Cunningham

[00:18:26] Speaker 00:
would also result in affirming the Veterans Court's decision on the matter.

[00:18:30] Speaker 04:
Mr. Gerhart, do we have jurisdiction to review the question of whether spoliation would not affect the outcome in the case?

[00:18:39] Speaker 04:
Is that a legal question or application of law of fact?

[00:18:45] Speaker 00:
Our view is that would be an application of law of fact in that

[00:18:51] Speaker 00:
What Mrs. Burns is arguing is that the Veterans Court should have applied the spoliation doctrine differently under these circumstances.

[00:19:00] Speaker 00:
And our position is that whatever legal construction can be given to spoliation, the result here wouldn't be different because Mrs. Burns cannot show a parent entitlement to DIC benefits such that the VA had a duty to forward her an application.

[00:19:24] Speaker 00:
In addition, even if the VA did have a duty to forward her an application in 2000 or 2001, Mrs. Burns still can't establish that there was Q in the 2012 decision.

[00:19:42] Speaker 00:
First, as the Veterans Court noted under Cook, Q has to be outcome-determinative, has to be based on the record before

[00:19:52] Speaker 00:
before the Auro at the time the decision was made.

[00:19:55] Speaker 00:
And this is similar, the failure to forward an application is similar to a breach of the duty to assist, and that we don't know what would have happened if we forwarded an application to Mrs. Burns.

[00:20:09] Speaker 00:
Generally speaking, she would not have had entitlement to DIC benefits if an application had been forwarded to her.

[00:20:18] Speaker 00:
So she wouldn't

[00:20:20] Speaker 00:
At that time, she wouldn't have been eligible for DIC benefits based on everything that we see in the record.

[00:20:27] Speaker 00:
But moreover, there's just no way to know what would have been different.

[00:20:30] Speaker 00:
So because any error would not have been outcome determinative, that, too, is an independent basis for affirming the Veterans Court's decision.

[00:20:38] Speaker 00:
In Mrs. Burns' brief, she raises Section 38 CFR 3.110.

[00:20:48] Speaker 00:
which she argues counsels in favor of polling the effective date.

[00:20:54] Speaker 00:
In the board's decision, the board noted that effective dates are controlled by section 5110 of the 38 USC.

[00:21:06] Speaker 00:
In Mrs. Burns' case, the applicable provision was 38 USC 5110 G, pursuant to which she received a year of retroactive benefits, which is exactly what she was entitled to

[00:21:18] Speaker 00:
And there's no basis for saying that 38 CFR 3.110 can toll the effective dates that Congress established in 38 USC 5110.

[00:21:30] Speaker 00:
What 38 CFR 3.110 does is explain in instances where a veteran or a claimant has to do something within a particular time period, how that time period is calculated.

[00:21:44] Speaker 00:
So for example,

[00:21:45] Speaker 00:
If a veteran is told or a claimant is told that they have to file evidence within a year or else their claim will be abandoned, 3.110 explains how that theory is calculated.

[00:21:59] Speaker 00:
But Mrs. Burns doesn't cite any evidence or any authority for the proposition that 3.110 alters the effective date framework set out by Congress in 38 USC 5110

[00:22:14] Speaker 00:
which the board faithfully applied here.

[00:22:18] Speaker 00:
And then finally, we also argue in our brief that exfoliation generally, if the court does reach the issue of how exfoliation should have applied here, that this, as one of Judge Cunningham's questions, I believe recognized that the courts have not applied exfoliation as far as an applied exfoliation doctrine against the VA.

[00:22:39] Speaker 00:
This court expressed concern about doing so in the former decision.

[00:22:43] Speaker 00:
based on the fact that it would undermine Congress's requirement that veterans present and support a claim for benefits, and the fact that Congress, while creating a number of other presumptions, did not create a spoliation presumption.

[00:22:58] Speaker 00:
So that would be an independent basis to reject Mrs. Burns' argument.

[00:23:06] Speaker 00:
If the court has no further questions,

[00:23:10] Speaker 00:
We ask that the court either dismiss Mrs. Barnes' appeal or fund the veterans' place of stay.

[00:23:18] Speaker 04:
Okay.

[00:23:18] Speaker 04:
Thank you, Mr. Carhart.

[00:23:20] Speaker 04:
Mr. Duhakis?

[00:23:25] Speaker 01:
Thank you, Your Honor.

[00:23:26] Speaker 01:
I have several points and I'll try to get through all of them.

[00:23:31] Speaker 01:
Number one, we cannot forget that had she applied for benefits and been denied under the Nehmer effective date rules, when the ischemic heart disease was added in 2010, they would have looked back to the 2000 claim and granted her effective date based on that application.

[00:23:48] Speaker 01:
That's number one.

[00:23:49] Speaker 01:
Number two, the government asserts that she had to establish apparent entitlement to DIC benefits.

[00:23:56] Speaker 01:
The regulation only says benefits.

[00:23:58] Speaker 01:
There's a number of benefits that are available to

[00:24:01] Speaker 01:
a surviving spouse.

[00:24:03] Speaker 01:
There's last month's accrued benefits, there's last month of any compensation, there's pension benefits and DIC benefits, in addition to some others.

[00:24:13] Speaker 01:
And there is binding case law, and as I said earlier, I think that there are some regulations that treat an application for pension as an application for DIC, depending on the circumstances.

[00:24:26] Speaker 01:
And again, the Nehmer effective date rules

[00:24:29] Speaker 01:
equally treat a pension benefit, a pure pension application, as one for compensation when there is an ischemic heart disease or a covered herbicide disease.

[00:24:40] Speaker 01:
I want to highlight again that the content of whatever records were destroyed is all speculation on both sides.

[00:24:46] Speaker 01:
We don't know, which is why we're asking this court to provide a remedy by ruling that dispolyation does apply.

[00:24:54] Speaker 01:
And we would, of course, be happy with the ruling.

[00:24:56] Speaker 01:
And again, the Veterans Court only touched on 3.150.

[00:25:00] Speaker 01:
We think that ruling, we didn't get to it here today.

[00:25:03] Speaker 01:
But our brief layout, why that ruling is incorrect, it is not a duty to assist error.

[00:25:07] Speaker 01:
The government acknowledges that.

[00:25:09] Speaker 03:
It is not something that- What's your best case to say that we have jurisdiction on the spoliation issue?

[00:25:18] Speaker 01:
Well, Your Honor, Cromer, the court addressed whether spoliation can apply.

[00:25:24] Speaker 01:
We think that we've distinguished from Cromer.

[00:25:27] Speaker 01:
In Cromer, they were looking at it as two presumptions, one of which doesn't apply here because the records were not negligent.

[00:25:35] Speaker 01:
There was no negligence involved.

[00:25:36] Speaker 01:
But mostly, in Cromer, the appellant was looking at a presumption that the missing records proved entitlement to benefits.

[00:25:45] Speaker 01:
That's not what we're asking for here.

[00:25:47] Speaker 01:
All we're asking for here is that the missing records established entitlement to benefits so that they had to give her an application.

[00:25:54] Speaker 01:
A very simple task of just handing her, mailing her, giving her an application, phoning her, saying, hey, we think you might be entitled to something.

[00:26:02] Speaker 01:
That is all that we're asking in the context of this appeal to the extent of a presumption under the expoliation.

[00:26:11] Speaker 01:
And I am out of time.

[00:26:14] Speaker 04:
Did you want to make any other points?

[00:26:16] Speaker 04:
We took a little of your time.

[00:26:17] Speaker 04:
So if you have another sentence or two you want to add, feel free.

[00:26:20] Speaker 01:
Yes, Your Honor.

[00:26:22] Speaker 01:
So to 3.150, the government asserts that it merely creates an incomplete record, which is not true.

[00:26:31] Speaker 01:
Again, had that been triggered, they would have sent her an application or been required to.

[00:26:36] Speaker 01:
3.110 very specifically says, and I'm looking at B here, the first day of the specified period in A, which is the time limit for any action, including the filing of a claims, shall be the date of mailing of notification

[00:26:51] Speaker 01:
of the action required and the time limit thereof.

[00:26:54] Speaker 01:
This regulation very clearly articulates a tolling of the time to submit her application until they tell her, here's the application and here's how long you have to present it.

[00:27:06] Speaker 01:
And if we can get at least to that extent the Veterans Court's ruling overturned and then perhaps a remand on the expoliation should the court find that it doesn't have the ability to address it here.

[00:27:19] Speaker 01:
Thank you.

[00:27:21] Speaker 04:
The case is submitted.