[00:00:00] Speaker 04:
This case is appeal number 21-2171, Gudenas versus McDonough.

[00:00:10] Speaker 04:
Mr. Herberger, you may proceed when you're ready.

[00:00:13] Speaker 01:
May it please the court to count Carpenter appearing on behalf of Mr. Godinus.

[00:00:17] Speaker 01:
Mr. Godinus' appeal rests upon this court's precedential decisions in Bond and Barad.

[00:00:24] Speaker 01:
In both of those cases, this court interpreted the provisions of the secretary's regulation at 38 CFR 3.156b.

[00:00:33] Speaker 01:
And in Bond, this court found that the secretary had self-imposed a requirement in this regulation

[00:00:41] Speaker 01:
that at any time the secretary receives during the identified periods in 3.156c new and material evidence that the secretary would be required at that point to assess that evidence.

[00:00:56] Speaker 01:
There was no assessment in this case.

[00:00:59] Speaker 04:
Do I remember that bond differs and that the two claims there were for the same condition?

[00:01:05] Speaker 01:
The bond does differ factually.

[00:01:08] Speaker 01:
And the question that arises based upon the decision that is on appeal from the Veterans Court is whether or not the, excuse me, I got distracted.

[00:01:24] Speaker 01:
This is showing the wrong time.

[00:01:26] Speaker 01:
It's got me with 13 minutes.

[00:01:30] Speaker 01:
So long.

[00:01:32] Speaker 04:
Are you trying to make sure you get your rebuttal time?

[00:01:35] Speaker 04:
It's OK.

[00:01:36] Speaker 04:
It'll work.

[00:01:36] Speaker 04:
What'll happen is it'll go red.

[00:01:38] Speaker 01:
That's fine.

[00:01:39] Speaker 01:
It just threw me off in the middle of my sentence there.

[00:01:41] Speaker 01:
Excuse me.

[00:01:43] Speaker 01:
What the Veterans Court did was to focus on what was the character or the label of the different claims in this case.

[00:01:52] Speaker 01:
Our argument is that Bond clearly states that there is an obligation to assist, and there was no assessment made.

[00:02:02] Speaker 01:
So even though the VA could use the argument that was made by the basis that was relied upon by the Veterans Court, that's inconsistent with this court's interpretation of the secretary's obligation under 3.156b.

[00:02:18] Speaker 01:
The 3.156b requires that there be an assessment.

[00:02:23] Speaker 01:
More importantly, this court's case in Barad followed up and made crystal clear that a claim is pending and remains pending until such time as there is an assessment.

[00:02:35] Speaker 01:
There was no such assessment in this case.

[00:02:38] Speaker 03:
Why isn't Manzanera's dispositive of your appeal here?

[00:02:41] Speaker 01:
Because Manzanares did not deal with the question of the obligation under 3.156b to make an assessment.

[00:02:50] Speaker 01:
The decision in Manzanares

[00:02:52] Speaker 01:
and I was counsel in that case, did attempt to bring 3.156b into the overall analysis of 3.310 as to what constitutes a secondary claim and whether or not it is part and parcel of the underlying condition.

[00:03:13] Speaker 01:
However, in this case, we presented both to the board, and later to the Veterans Court, that the error made by the board was its failure to correctly apply 3.156b.

[00:03:23] Speaker 06:
That was the- The Wins and Errs does talk about 3.156b.

[00:03:28] Speaker 06:
It does, Your Honor.

[00:03:29] Speaker 06:
Right.

[00:03:29] Speaker 06:
Next to last paragraph, I guess, would be opinion.

[00:03:32] Speaker 06:
And distinguishes Bond and Burrough on the ground.

[00:03:36] Speaker 06:
as I understand what the court was saying, that they dealt with the same condition as opposed to, in that case and in this case as well, secondary and primary claim conditions.

[00:03:50] Speaker 01:
Right.

[00:03:50] Speaker 01:
And the difference in this case factually is, Your Honor, that Mr. Godinus started this appeal pro se.

[00:03:59] Speaker 01:
And he made a claim for sleep apnea in 2014.

[00:04:03] Speaker 01:
That claim was denied, and a notice of disagreement was filed.

[00:04:07] Speaker 01:
That triggered the provisions of 3.156b.

[00:04:10] Speaker 01:
Because after that, he retained my services, and we submitted an additional matter that dealt with whether or not Mr. Guterres was entitled to a TDIU rating.

[00:04:25] Speaker 01:
And we modified the sleep apnea claim from a direct claim to a secondary claim.

[00:04:32] Speaker 01:
And that secondary claim, as a matter of fact, is still pending.

[00:04:37] Speaker 01:
There's been no resolution on that secondary claim.

[00:04:41] Speaker 01:
But the assessment that's required under bond is to determine whether or not when the

[00:04:47] Speaker 01:
Secretary received the TDIU application and received the modified theory of entitlement to compensation on a secondary basis for sleep apnea, did either or both of those relate back to the claim that was filed for additional compensation?

[00:05:08] Speaker 01:
At the time in which Mr. Gutierrez, excuse me, Godinus applied

[00:05:13] Speaker 01:
made his application for sleep apnea service connection on a direct basis.

[00:05:19] Speaker 01:
He was already service connected for post-traumatic stress disorder.

[00:05:23] Speaker 01:
Therefore, he was already found entitled to compensation from the VA for a service-connected disability.

[00:05:31] Speaker 01:
By modifying his theory from direct service connection to secondary service connection, he was showing the VA that he was asking for additional compensation based upon the underlying condition of post-traumatic stress disorder.

[00:05:49] Speaker 01:
that it was the cause that resulted in his sleep apnea problem.

[00:05:55] Speaker 01:
As Judge Greenberg pointed out in the dissent, the real question here is the burden that the Veterans Court imposed upon a lay or pro se veteran to try to articulate what he was in fact asking for.

[00:06:12] Speaker 01:
And they did that by placing labels on a claim.

[00:06:17] Speaker 01:
A claim is simply a request for VA benefits.

[00:06:21] Speaker 01:
And in this case, the only VA benefits at issue were additional compensation.

[00:06:27] Speaker 01:
If he had been granted TDIU, then he would have gotten additional compensation.

[00:06:31] Speaker 01:
If he would have been granted service connection either on a direct or a secondary basis for sleep apnea, he would have gotten additional compensation.

[00:06:40] Speaker 01:
So the distinction that was talked about in

[00:06:42] Speaker 01:
Manzanares was relevant to that case.

[00:06:47] Speaker 01:
In this case, we have a completely different set of facts that deal with what is the same claim.

[00:06:55] Speaker 01:
There was never any change on the part of this veteran that he wanted additional compensation.

[00:07:02] Speaker 01:
And VA eventually awarded him a 100% scheduler rating for his posting.

[00:07:07] Speaker 06:
And all that's in dispute here is the effective date.

[00:07:11] Speaker 01:
Well, actually, it's not, Your Honor.

[00:07:14] Speaker 01:
The ultimate result could be an earlier effective date.

[00:07:18] Speaker 01:
But it's important to understand that 3.156C is not an effective date regulation.

[00:07:24] Speaker 06:
That's where at the end of the pot of gold at the end of the rainbow is just the effective date that a little over a year earlier.

[00:07:31] Speaker 01:
In terms of benefits, that's correct, Your Honor.

[00:07:34] Speaker 01:
That's correct.

[00:07:38] Speaker 01:
The question is whether or not this court's case law in bond and broad

[00:07:43] Speaker 01:
require, as I believe they clearly do, a assessment, and that that assessment must be made.

[00:07:50] Speaker 01:
And until the assessment is made, the underlying claim remains pending.

[00:07:55] Speaker 01:
It does not mean that the VA must agree with Mr. Goodiness.

[00:08:01] Speaker 01:
Mr. Goodiness, I am so sorry.

[00:08:05] Speaker 01:
Mr. Goodiness, in his assertion that they do relate back

[00:08:11] Speaker 01:
If the VA were to have done its assessment as they were required to do, then Mr. Godinus would have had the opportunity to appeal an adverse decision.

[00:08:22] Speaker 01:
But he never did.

[00:08:23] Speaker 01:
And what Marad says is that if 3.156z is not applied and the assessment is not made, then the claim remains pending.

[00:08:33] Speaker 01:
And that claim is the 2014 claim for sleep apnea.

[00:08:36] Speaker 06:
So he's saying, in effect, that the submission of his claim for TDIU under the PTSD theory was new and material evidence of sleep apnea?

[00:08:52] Speaker 01:
Well, no.

[00:08:53] Speaker 06:
That's ultimately what he needs to show, right?

[00:08:57] Speaker 01:
Well, we don't believe necessarily for the purpose of the 3.156b, because the question is, would he be entitled to additional compensation for TDIU based upon a pending claim, a claim that was already pending for sleep apnea?

[00:09:13] Speaker 01:
So you can get there two ways.

[00:09:16] Speaker 06:
Well, go ahead.

[00:09:16] Speaker 06:
Tell me how.

[00:09:17] Speaker 01:
You can get there two ways.

[00:09:18] Speaker 01:
You can either get there through the sleep apnea route,

[00:09:21] Speaker 01:
And then he changed it from direct to secondary.

[00:09:25] Speaker 01:
Or you can get there through the TDIU route.

[00:09:28] Speaker 01:
If the TDIU evidence was new and material and related back to his claim for additional compensation made in 2014.

[00:09:38] Speaker 06:
But doesn't it have to be new and material evidence of sleep apnea?

[00:09:42] Speaker 06:
Not just new and material evidence with regard to the PTSD.

[00:09:53] Speaker 01:
I think the appropriate response to that, Your Honor, is that is why the regulation was interpreted by this court to require an assessment.

[00:10:03] Speaker 01:
It is in that assessment that the VA determines whether what was received was or wasn't new and material evidence that related back to, in this case, the sleep apnea claim filed in 2014.

[00:10:15] Speaker 06:
We'll assume for the moment that we didn't have the secondary and primary relationships between the claims.

[00:10:24] Speaker 06:
And instead, all you had was two very different claims, one for an ankle injury and another for headaches, let's say.

[00:10:33] Speaker 06:
Are you saying that as long as the claims overlap, to the extent that one of the claims comes in during the one-year period for appeal from the first claim, that the RO always and the board and the court always have to ask, is that new and material evidence with respect to the first claim?

[00:10:56] Speaker 01:
Yes, Your Honor.

[00:10:57] Speaker 06:
Always.

[00:10:57] Speaker 06:
Always.

[00:10:59] Speaker 06:
Seemingly unrelated, the two claims may be.

[00:11:01] Speaker 01:
Yes, Your Honor.

[00:11:02] Speaker 01:
Because of the way in which this court interpreted 3.156b in bond, this court said that the secretary had made the choice by regulation to self-impose this obligation.

[00:11:18] Speaker 01:
And the analysis in Bond explains why the court determined that that was the correct interpretation of 3.156b.

[00:11:26] Speaker 01:
The slight distinction that I would make, Your Honor, in the way in which you described it is to suggest that the question is about the assessment of what was received.

[00:11:38] Speaker 01:
And they must first determine whether it's new and material evidence.

[00:11:41] Speaker 01:
Because if it's not new and material evidence, then it can't relate back to.

[00:11:46] Speaker 01:
But if it was new and material evidence, and the courts described what that is, evidence that hadn't been previously considered, and that it was relevant, did it relate back to the claim that this veteran, pro se, initiated all on his own a year earlier in August of 2014?

[00:12:07] Speaker 01:
I was about to say I was into my rebuttal, but I'll be happy to answer your question.

[00:12:12] Speaker 03:
Last question I have, Elise.

[00:12:13] Speaker 03:
Is it possible that the board made an assessment

[00:12:16] Speaker 03:
and actually discuss 3.156b.

[00:12:18] Speaker 03:
I at least see it on appendix page 132 a little bit.

[00:12:23] Speaker 00:
That appendix 122?

[00:12:24] Speaker 00:
132.

[00:12:25] Speaker 03:
Oh, 32.

[00:12:26] Speaker 00:
I forget the right page.

[00:12:30] Speaker 03:
And I'm focused on the second paragraph beginning with after a review of the record.

[00:12:38] Speaker 00:
I'm sorry, Your Honor.

[00:12:39] Speaker 00:
Where is that again?

[00:12:39] Speaker 03:
I'm focused on the paragraph beginning with after a review of the record.

[00:12:43] Speaker 00:
Oh, I see it.

[00:12:43] Speaker 00:
I see it.

[00:12:43] Speaker 00:
I see it.

[00:12:50] Speaker 03:
So I at least see some discussion and possible assessment with respect to 3.156B.

[00:12:55] Speaker 03:
I just want you to speak to that.

[00:12:57] Speaker 01:
OK.

[00:12:58] Speaker 01:
Well, let's begin with their opening sentence.

[00:13:01] Speaker 01:
It says, after review of the record, the board finds that an earlier effective date for service connection for PTSD is not warranted.

[00:13:09] Speaker 01:
That's not the assessment required under 3.156B.

[00:13:14] Speaker 01:
The assessment is,

[00:13:16] Speaker 01:
was the evidence received?

[00:13:18] Speaker 01:
And in this case, it was the new filing of the TDIU application and the modification of the basis for sleep apnea from direct to secondary.

[00:13:29] Speaker 01:
Was that new and material evidence which related back?

[00:13:33] Speaker 01:
So the very first sentence doesn't qualify.

[00:13:36] Speaker 03:
OK, well, let's go to the next sentence.

[00:13:38] Speaker 01:
Let's keep going.

[00:13:38] Speaker 01:
I was just about to.

[00:13:40] Speaker 01:
The veteran then, or the board then says,

[00:13:44] Speaker 01:
Veterans claims that he's entitled to an effective date of May 2014 based upon 3.1560 due to the submission of, that is precisely what we argued.

[00:13:56] Speaker 01:
Then it goes through the contentions that were made.

[00:14:00] Speaker 01:
And then the board concludes, however, the claim filed on May 2014 was a claim for service connection for sleep apnea and did not mention the psychiatric claim to include an assessment.

[00:14:14] Speaker 01:
That is not an assessment of whether it relates back to the claim.

[00:14:23] Speaker 01:
It is a declaratory statement that the claim filed was a claim for sleep apnea.

[00:14:30] Speaker 01:
Well, there's no dispute about that.

[00:14:33] Speaker 03:
Just to correct the record, it says to include PTSD, not to include an assessment.

[00:14:37] Speaker 03:
I think you just misstated when you were reading there.

[00:14:39] Speaker 01:
I just want to make... Oh, I'm sorry, to include PTSD.

[00:14:42] Speaker 01:
Although that's a little bit deceiving, Your Honor, because there was no claim for PTSD.

[00:14:48] Speaker 01:
He was already service-connected for PTSD.

[00:14:51] Speaker 01:
He was seeking a higher rating than his scheduler rating of 50% to get a TDIU rating, which would have treated his 50% rating as though it were a total rating under the provisions of 4.16.

[00:15:13] Speaker 04:
four minutes of your rebuttal time.

[00:15:15] Speaker 02:
Ms.

[00:15:16] Speaker 02:
Tandem?

[00:15:17] Speaker 02:
Your Honor, may it please the Court, this Court's precedent in Mons Inaris controls in this appeal.

[00:15:23] Speaker 02:
The Veterans Court simply applied this well-established precedent, meaning that it did not interpret section 3.156b as Mr. Gudinus claims.

[00:15:32] Speaker 02:
If the Court believes that the Veterans Court did interpret 3.156b, it did so correctly to find in Mr. Gudinus's

[00:15:39] Speaker 02:
who deem us as favor, the court would have to either overrule Manzanares or completely ignore the facts of this case.

[00:15:45] Speaker 02:
In 2005, Mr. Godinus was granted service connection for PTSD with a 50% disability rating.

[00:15:53] Speaker 02:
VA increased this rating to 100% with an effective date of October 26, 2015.

[00:15:58] Speaker 02:
The day that he submitted that claim for the increase in compensation for PTSD.

[00:16:05] Speaker 02:
Before the Veterans Court, Mr. Godinus is seeking a year and a half of additional compensation by claiming the VA should have applied an earlier effective date, the May 30, 2014, date of his separate claim for sleep apnea.

[00:16:19] Speaker 02:
That claim is found on appendix page 37 and describes the claimed disability as sleep apnea.

[00:16:25] Speaker 02:
In October 2015, Mr. Godinus is herded for the

[00:16:34] Speaker 02:
sleep apnea actually included a theory that it was secondary to the service-connected PTSD, and he sought increased compensation for that PTSD as well.

[00:16:48] Speaker 02:
The board did, as Your Honor noted, consider whether 3.156b was implicated.

[00:17:00] Speaker 02:
The Veterans Court found

[00:17:02] Speaker 02:
on page 16 of the appendix that the Ford head, in essence, considered whether 3.156B was triggered by considering whether the sleep apnea claim

[00:17:14] Speaker 02:
contained a claim for a PTSD rating increase.

[00:17:18] Speaker 02:
It found that it did not.

[00:17:19] Speaker 02:
And Mr. Godinus is reading out the word material from new and material evidence.

[00:17:26] Speaker 02:
Plainly, for the evidence submitted, the Social Security Earning Record and TDIU form related to the inability to work due to PTSD and tinnitus

[00:17:41] Speaker 02:
which is noted in those documents from October 2015, they are not material to the question of sleep apnea.

[00:17:51] Speaker 04:
What about, I think that Mr. Cardenas' argument would be, or Mr. Carpenter's argument would be, that it is not for us to decide whether it's new material.

[00:18:02] Speaker 04:
It is for the agency to decide.

[00:18:04] Speaker 04:
How do you respond to that?

[00:18:06] Speaker 02:
Well, Your Honor, that's correct.

[00:18:09] Speaker 02:
The question that Mr. Hedinus appears to be raising is a claim that the Veterans Court interpreted 3.156b.

[00:18:18] Speaker 02:
We don't believe that the Veterans Court did so.

[00:18:20] Speaker 02:
It did not elaborate on the meaning of 3.156b.

[00:18:22] Speaker 02:
In fact, 3.310a is the question at issue.

[00:18:30] Speaker 02:
It's whether a primary and secondary claim, in essence, merge to provide a veteran with the effective date

[00:18:40] Speaker 02:
of a secondary claim filed before the primary claim in this case.

[00:18:46] Speaker 04:
I think that his argument is that based on bond, the VA has to look and see if that evidence is new and material evidence for all pending claims.

[00:18:57] Speaker 02:
Do you agree with that interpretation?

[00:19:02] Speaker 02:
makes sense, however, in this case, that won't have an effect on the effective date.

[00:19:10] Speaker 06:
No, wait.

[00:19:10] Speaker 06:
Let me make sure I understand your answer to that.

[00:19:13] Speaker 06:
You say you believe it makes sense.

[00:19:16] Speaker 06:
Do you agree with that?

[00:19:19] Speaker 02:
Sorry.

[00:19:19] Speaker 02:
Yes, to be clear, yes.

[00:19:21] Speaker 06:
Because all you've said was the interpretation that Mr. Carpenter is giving to 156B.

[00:19:26] Speaker 02:
Well, let me back up a little bit, make sure I understood your honor's question.

[00:19:32] Speaker 02:
If the material that had been provided in October 2015 had related to sleep apnea in some way, then there could be a consideration of whether it was new and material for the sleep apnea claim.

[00:19:48] Speaker 02:
In fact, the board did a consideration of whether the material was new and material evidence.

[00:19:57] Speaker 02:
with relating to the May 2014 claim.

[00:20:02] Speaker 02:
But it explained that the May 2014 claim was for sleep apnea.

[00:20:06] Speaker 02:
It wasn't for PTSD.

[00:20:08] Speaker 02:
And what Mr. Godinus is doing is reading together the secondary and primary service connection to meld both claims into a single claim.

[00:20:21] Speaker 02:
And thus meaning that every claim must

[00:20:27] Speaker 02:
get the same effective date.

[00:20:30] Speaker 02:
This is, I think, the point of the argument about the regulatory definition of claim.

[00:20:35] Speaker 04:
Can I try and understand your position?

[00:20:36] Speaker 04:
I think you're saying that you think that the board, in fact, did consider this.

[00:20:41] Speaker 04:
And I think you'd be referring to page A132.

[00:20:43] Speaker 04:
That's right.

[00:20:45] Speaker 04:
But you're saying that that doesn't mean that the earlier claim for sleep apnea is reopened such that an appeal could be taken.

[00:20:56] Speaker 04:
Is that what you're saying?

[00:20:57] Speaker 02:
Right.

[00:20:57] Speaker 02:
I'm not entirely sure.

[00:21:00] Speaker 02:
The Sleep Apnea, and I understand Mr. Godinus's counsel just discussed the Sleep Apnea claim.

[00:21:05] Speaker 02:
The Sleep Apnea claim was the question of whether their secondary service connection for Sleep Apnea has actually been pending before the board, and the board has this summer denied

[00:21:18] Speaker 02:
secondary service connection for sleep apnea.

[00:21:21] Speaker 02:
And Mr. Godinus has now appealed that to the Veterans Court.

[00:21:26] Speaker 02:
And that's not within the record before the court, having happened fairly recently.

[00:21:31] Speaker 02:
But the question of whether there was new and material evidence related to a sleep apnea claim, there simply was not.

[00:21:39] Speaker 02:
Because the earnings and TDIU material

[00:21:46] Speaker 02:
was determined not to be related to the sleep apnea claim.

[00:21:50] Speaker 02:
The sleep apnea claim was not described as one for secondary service connection.

[00:21:54] Speaker 02:
It was not one for PTSD.

[00:21:58] Speaker 06:
Just a ministerial question.

[00:22:00] Speaker 06:
We have in the appendix at pages 37 through 39

[00:22:12] Speaker 06:
through 54, the application dated October 26, 2015.

[00:22:21] Speaker 06:
Is that the sum and substance of those two applications or do we just have a portion of those two applications?

[00:22:29] Speaker 02:
To my knowledge, this is the sum of the applications.

[00:22:32] Speaker 06:
There's no other material that was submitted on either of those days?

[00:22:35] Speaker 02:
That is our understanding.

[00:22:37] Speaker 02:
I wanted to make sure I understood the question about sleep apnea and

[00:22:47] Speaker 02:
PTSD, the two claims are not merged in some way.

[00:22:51] Speaker 02:
If there had been new and material evidence raised, that would be one question.

[00:22:57] Speaker 02:
But it was not raised.

[00:22:59] Speaker 03:
Can you respond to opposing counsel's argument, like this claim stream argument?

[00:23:05] Speaker 03:
I think that's how he kind of phrases it.

[00:23:06] Speaker 03:
Can you just tell us your take on that?

[00:23:08] Speaker 03:
Do you agree that that somehow implicates 3.156b?

[00:23:13] Speaker 03:
and could require an earlier effective date?

[00:23:15] Speaker 02:
No, Your Honor, it does not.

[00:23:18] Speaker 02:
The issue is the condition raised.

[00:23:23] Speaker 02:
in the claim.

[00:23:25] Speaker 02:
As Judge Bryson pointed out, the question of what is in a claim is not simply what benefit it's seeking.

[00:23:34] Speaker 02:
And Mr. Godinus appears to meld every claim into a single claim because they all seek a benefit.

[00:23:42] Speaker 02:
But it has to be related to the condition.

[00:23:45] Speaker 02:
And the Veterans Courts, as I noted, pointed out that the board had considered

[00:23:53] Speaker 02:
the question of conditions.

[00:23:56] Speaker 02:
So claims stream the idea that just because you file a claim for sleep apnea, that you're starting a claim stream that must just bring into it every single subsequent claim for an increased rating and PTSD material that you say supports that increased rating claim.

[00:24:17] Speaker 02:
That isn't a correct understanding of how the claim process works.

[00:24:23] Speaker 04:
What about the language pending claim in 3.156B?

[00:24:28] Speaker 04:
Does that do any work there to your benefit?

[00:24:31] Speaker 02:
Yes, I believe that the pending claim cannot, I think, be read in the way that Mr. Godinus is.

[00:24:42] Speaker 02:
The claim that's pending has to be the one for the condition here with sleep apnea.

[00:24:51] Speaker 02:
That was a claim that was pending.

[00:24:53] Speaker 02:
It didn't somehow become a claim for PTSD or even a claim for secondary connection.

[00:25:01] Speaker 02:
from a sleep apnea to PTSD simply because Mr. Godinus now argues that and Mr. Godinus calls it refers I believe when he uses the term label he is referring to the condition that is being discussed the condition that Mr. Godinus claimed he had and to read out the condition would be an extremely odd way of reading 3.156b

[00:25:28] Speaker 02:
In addition, the regulatory definition of claim, simply because it contains the word benefit, cannot be interpreted to mean that it need not be interpreted in terms of what condition is being asserted.

[00:25:48] Speaker 02:
As we noted, Mr. Gdyniston raised this argument for the Veterans Court and therefore waived it.

[00:25:55] Speaker 02:
There is the question of the alleged failure to sympathetically read his 2014 claim and maximize his benefits, again, not made below.

[00:26:04] Speaker 02:
And this sympathetic reading is something that the court doesn't have jurisdiction to consider.

[00:26:11] Speaker 02:
It can't mean that VA has to read a claim to interpret it to relate to conditions that aren't even mentioned in it.

[00:26:19] Speaker 02:
In any event, the Veterans Court assumed

[00:26:22] Speaker 02:
that this May 2014 claim was for secondary service connection to PTSD.

[00:26:30] Speaker 02:
And that's apparently what Mr. Godinus thinks that the VA should have done.

[00:26:33] Speaker 02:
However, even giving him that reading, giving him the benefit of the doubt, the Veterans Court pointed directly to the fatal flaw that underlies all of his arguments.

[00:26:46] Speaker 02:
which is that a claim for primary condition, a primary condition, one for secondary, simply do not get the same effective date.

[00:26:56] Speaker 02:
And that is what the court found in Monzanares.

[00:27:01] Speaker 03:
If the October 2015 claim had new evidence that was specific to sleep apnea, do you then contend that 3.156B would mean the board needed to look at that new evidence?

[00:27:14] Speaker 02:
If it had had, I believe that it was within the appeal period.

[00:27:19] Speaker 02:
An appeal was ongoing of the sleep apnea claims denial.

[00:27:25] Speaker 02:
So if it had been directly about sleep apnea, I believe that it would have been something that could have been considered new and material evidence.

[00:27:36] Speaker 02:
But in this case, being within that appeal period, which I'm assuming is the case,

[00:27:43] Speaker 02:
But in this case, when the board looked at the question there, was PTSD, was the characterization of this claim PTSD, did that mean that new and material evidence

[00:28:00] Speaker 02:
was related to the May 2014 claim.

[00:28:03] Speaker 02:
The May 2014 claim plainly was not won through PTSD.

[00:28:07] Speaker 02:
And that's what matters for the purpose of an effective date, which is all that's sought here is an increase in the effective date, May 2014 versus October 2015.

[00:28:24] Speaker 02:
We'd also just like to note that, as we've said, there was no interpretation by the Veterans Court of 3.156b.

[00:28:29] Speaker 02:
So we don't believe that the court has jurisdiction.

[00:28:33] Speaker 02:
To entertain Mr. Godinus's arguments, certainly not his argument that VA did not maximize his benefits under 3.103a.

[00:28:44] Speaker 02:
Certainly not the question of whether VA sympathetically read his claim, which is a question of application of law of fact.

[00:28:51] Speaker 02:
Certainly not whether the effective date is correct.

[00:28:55] Speaker 02:
And certainly, the claim rests on, or these arguments here, rests on factual assertions about what constitutes new and material evidence, which the court doesn't have jurisdiction to review, and also what the claim means.

[00:29:09] Speaker 02:
Like, does the claim?

[00:29:11] Speaker 06:
But his argument about the interpretation of 3.156b is, as I understand it, is that

[00:29:20] Speaker 06:
Anytime there are two claims pending, the board has to, the RO and the board and so forth, have to look at the question of whether there's new and material evidence.

[00:29:32] Speaker 06:
That's an interpretation, it seems to me, of 1.56b.

[00:29:35] Speaker 06:
You may disagree with that.

[00:29:37] Speaker 06:
In fact, you clearly do disagree with that interpretation.

[00:29:40] Speaker 06:
But isn't that an interpretation of 1.56b?

[00:29:46] Speaker 02:
Well, Your Honor, we believe that if

[00:29:50] Speaker 02:
there was no need for the Veterans Court to make an interpretation since it was applying well.

[00:29:55] Speaker 06:
Well, didn't it effectively make an interpretation by rejecting the argument that he was making as to the scope of 156B?

[00:30:03] Speaker 06:
If that's so, then why isn't this within our jurisdiction as a question as to the scope of 156B?

[00:30:11] Speaker 02:
Well, Your Honor, mainly because the well-established law

[00:30:18] Speaker 02:
It was simply being applied by the Veterans Court.

[00:30:21] Speaker 02:
The question, oh, and I'm going to run out of time, but.

[00:30:26] Speaker 06:
So you're saying that if the Veterans Court has said it before, it can say it again, and we don't have jurisdiction the second time around, even though we might have had the jurisdiction the first time around?

[00:30:36] Speaker 06:
Sure, but not.

[00:30:37] Speaker 02:
No, no.

[00:30:38] Speaker 06:
It's a well-set law.

[00:30:41] Speaker 06:
That can't be correct, right?

[00:30:43] Speaker 02:
Well, settled by this court, by this court.

[00:30:45] Speaker 06:
Well, but even so, I mean, maybe he wants to go in back.

[00:30:49] Speaker 06:
I mean, we don't lack jurisdiction to address a question simply because we have addressed it before, and arguably addressed it in months and years, but maybe not.

[00:31:01] Speaker 06:
Isn't that a sufficient issue to grant us jurisdiction?

[00:31:07] Speaker 02:
Well, we believe that.

[00:31:10] Speaker 02:
At some point, the court's case law is well-established on the question of primary and secondary claims and effective dates, that at that point, there need not be an appeal every time the Veterans Court applies that well-established law.

[00:31:26] Speaker 05:
And so we don't have the power to correct an error that we made.

[00:31:34] Speaker 02:
I would not say that.

[00:31:37] Speaker 05:
You wouldn't say that?

[00:31:38] Speaker 02:
I wouldn't say that the court lacks the ability to correct a mistake you previously made.

[00:31:42] Speaker 06:
But if you say you made no jurisdiction, isn't that just what you're saying?

[00:31:46] Speaker 06:
If the law is well established enough, that is, we've said it two or three times.

[00:31:52] Speaker 06:
But the fourth time, we have no jurisdiction to address the question.

[00:31:56] Speaker 02:
Well, Mr. Goodenough has not brought an appeal for en banc review of Monsonari's.

[00:32:02] Speaker 02:
But thank you very much, Your Honor.

[00:32:11] Speaker 01:
The government referred this court to the Veterans Court's decision, in which I believe I wrote it down correctly.

[00:32:22] Speaker 01:
The Veterans Court said that the board had, in essence, considered the new and material evidence.

[00:32:29] Speaker 01:
I believe this court made clear in both Bond and Barad that an in-essence consideration by the VA doesn't meet the requirements of the assessment.

[00:32:40] Speaker 01:
The holding in Bond says that the assessment must be explicit, not implicit.

[00:32:49] Speaker 01:
And therefore, the Veterans Court did make an interpretation of 3.156b by concluding in its decision that it was sufficient for the board to have, in essence, considered whether the new and material evidence related back.

[00:33:05] Speaker 03:
Where's the in-essence part?

[00:33:07] Speaker 01:
I'm out of time.

[00:33:07] Speaker 01:
I'm sorry.

[00:33:08] Speaker 01:
I was just responding to the quote.

[00:33:10] Speaker 01:
I think I can find it.

[00:33:12] Speaker 03:
Because I was looking at Appendix Page 16 based on the government's argument.

[00:33:16] Speaker 03:
I'm just wanting to make sure I'm following where you're getting this, in essence.

[00:33:21] Speaker 01:
Sorry, Your Honor.

[00:33:22] Speaker 01:
I did not look to see exactly where it was from.

[00:33:25] Speaker 01:
I assumed that the government was correct.

[00:33:27] Speaker 04:
You might be thinking of page A16, which is the second paragraph, for the line three.

[00:33:37] Speaker 04:
The board essentially considered?

[00:33:39] Speaker 04:
Is that what you're saying?

[00:33:40] Speaker 01:
Yes, that's it.

[00:33:41] Speaker 01:
And it says, thus, although the board did not address whether the October 2015 submissions were new and material evidence related to the May 2014 claim, a review of the board's analysis reflects that the board essentially

[00:33:57] Speaker 01:
considered, instead of in essence, whether section 3.156b was triggered when it determined the nature of the claim.

[00:34:08] Speaker 01:
And therein lies the problem.

[00:34:10] Speaker 01:
We are dealing here with what is supposed to be a pro-veteran system that is to be sympathetically reading the submissions that are made by a pro se veteran.

[00:34:23] Speaker 01:
In this case, as distinguished from Manzanares, we are dealing with what started as a direct claim and was, with the assistance of counsel, altered to a secondary claim during the course of and has continued to be considered as a secondary claim.

[00:34:44] Speaker 01:
Now, Mr. Dinas was entitled to consideration under 3.156b as interpreted by this court.

[00:34:56] Speaker 01:
I honestly don't believe there's anything else that I have to offer, unless there's any further questions from the panel.

[00:35:00] Speaker 01:
Thank you, Mr. Jones.

[00:35:01] Speaker 04:
Thank you.

[00:35:02] Speaker 04:
The case is submitted under the briefs.

[00:35:04] Speaker 04:
Thank you for your time.