[00:00:00] Speaker 05:
final case this morning at number 21, 1811, Jordan versus McDonough.

[00:00:08] Speaker 05:
OK, Mr. Carpenter.

[00:00:11] Speaker 03:
Excuse me.

[00:00:12] Speaker 03:
May it please the court?

[00:00:13] Speaker 03:
Kenneth Carpenter, appearing on behalf of Mr. James Jordan.

[00:00:17] Speaker 03:
Before I begin my argument, Your Honors, I would like to make the court aware of the fact that Mr. Jordan is aware of a recently decided decision on Thursday of last week, which we intend to submit as supplemental authority.

[00:00:31] Speaker 03:
Fortunately, because of the timing, we weren't able to get that submitted before this argument started.

[00:00:40] Speaker 01:
What does it relate to?

[00:00:42] Speaker 03:
It relates to the question of prejudice, Your Honor.

[00:00:44] Speaker 03:
It is a case called Slaughter, S-L-A-U-G-H-T-E-R.

[00:00:50] Speaker 03:
Case number is 2021-1367.

[00:01:03] Speaker 03:
May it please the court then, on behalf of Mr. Jordan, we believe that the Veterans Court erred when it applied the wrong legal standard in taking due account under the rule of prejudicial error.

[00:01:15] Speaker 03:
Mr. Jordan asked in his appeal that this court review the legal standard used by the Veterans Court in applying that rule of prejudicial error.

[00:01:24] Speaker 05:
How could there be prejudicial error if the statute that you say they should have discussed doesn't help you?

[00:01:35] Speaker 03:
Well, Your Honor, that goes to the second point that we raise, which we believe that that conclusion was based upon a misinterpretation of the regulation that it did not apply.

[00:01:46] Speaker 05:
But if the statute doesn't apply, then there's no error to begin with, right?

[00:01:53] Speaker 03:
That's correct, Your Honor.

[00:01:55] Speaker 03:
But then the question becomes whether or not the regulation applies.

[00:01:59] Speaker 03:
And I'll focus on that argument if the court agrees that if the regulation does apply and the failure of the board to reply to that specific argument presented to them had to be prejudicial.

[00:02:17] Speaker 05:
But if you're wrong about both the statute and the regulation, then there's no error.

[00:02:23] Speaker 03:
That would be correct.

[00:02:23] Speaker 03:
If I'm wrong about both, that would be correct.

[00:02:26] Speaker 03:
But the dilemma here is that this court's case law up to this point has been at least muddied by the question of whether or not this court can review the application of the rule of prejudicial error and whether or not that does or doesn't constitute an application of law to fact.

[00:02:47] Speaker 03:
That, in our view, is the first hurdle that we have to get over.

[00:02:51] Speaker 03:
and that the question of whether or not the regulation applies is a separate question of law, which is reviewable by this court.

[00:03:06] Speaker 00:
And why can't we address that question first?

[00:03:11] Speaker 03:
I'm happy to address that question.

[00:03:12] Speaker 00:
No, no, I mean, not you, but yes.

[00:03:15] Speaker 00:
You're not suggesting that we are obliged

[00:03:21] Speaker 00:
to address the standard of prejudicial error before deciding whether the regulation actually applies?

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Or whether your interpretation of the regulations?

[00:03:32] Speaker 03:
As I had understood this court's case law up until the slaughter case, I had understood this case law to at least raise the question of whether or not this court could even consider

[00:03:45] Speaker 03:
a question of statutory or regulatory interpretation if there had been a factual determination that the rule of prejudicial error applied.

[00:03:54] Speaker 00:
I see.

[00:03:58] Speaker 03:
OK.

[00:03:59] Speaker 03:
So if the panel wishes that I will proceed directly to the question of the validity of the error made in its reliance by the Veterans Court,

[00:04:13] Speaker 03:
that the provision of section 3.156b did not apply.

[00:04:18] Speaker 05:
OK, so did we decide that against you in the Manzanares case, which you yourself argued?

[00:04:25] Speaker 03:
No, Your Honor, I do not believe that you did.

[00:04:27] Speaker 03:
In the Manzanares case, there was a different question presented.

[00:04:32] Speaker 03:
Same regulation, right?

[00:04:34] Speaker 03:
It is the same regulation, Your Honor.

[00:04:36] Speaker 03:
But in that case, as opposed to the facts of this case, which is why it was necessary for the board to have addressed this question in the first instance, was whether or not this was or wasn't part of the same claim.

[00:04:50] Speaker 03:
In this case, we are dealing with a claim that involved the veteran's knees.

[00:04:56] Speaker 03:
The VA, during the course of this protracted litigation, eventually agreed that both legs were in, excuse me, both knees were entitled to service-connected compensation.

[00:05:08] Speaker 03:
The question then becomes whether or not the claim is merely the claim for compensation as opposed to the subset of a claim as to one knee or the other.

[00:05:19] Speaker 03:
The claim was continuously prosecuted on the basis of the entitlement to the maximum benefit available under law for his first service-connected knee disability, which included the right to a total rating based upon unemployability.

[00:05:35] Speaker 03:
During the course of that procracted litigation, the issue of the second knee was raised and ultimately favorably litigated.

[00:05:44] Speaker 03:
So the question under 3.156b is whether or not

[00:05:48] Speaker 03:
under the plain language of 3.156b, as has been interpreted by this court in both bond and broad, this is a claim, excuse me, this was, for the second knee, new and material evidence which related back to the original claim for service-connected compensation for a resulting disability.

[00:06:10] Speaker 03:
The specifics of whether it is left knee or right knee do not prevent the application of 3.156b, which was the interpretation relied upon by the Veterans Court.

[00:06:22] Speaker 03:
The Veterans Court relied upon an interpretation of 3.156b that would be nuanced as to what part of the claim was or wasn't being pursued.

[00:06:38] Speaker 03:
The fact is that when the evidence came of record that there was a relationship between the service-connected need and his non-service-connected need, that implicated the provisions of 3.156b as a matter of law.

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Because it was, in fact, new and material evidence presented during the course of his continuing appeal to determine whether or not

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that new and material evidence related back to the original claim.

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If this court defines, as it should, the original claim to mean the claim for compensation, then in fact, this court would necessarily have to find that the interpretation relied upon the Veterans Court of 3.156B was erroneous.

[00:07:30] Speaker 03:
It was, in fact, erroneous because it deprived Mr.

[00:07:35] Speaker 03:
Jordan of the right to have the application of an applicable regulation in a case in which on appeal to the board he presented that specific evidence and the reviewing court found that even though it had been submitted and they had failed to address it that the issue could be

[00:08:00] Speaker 03:
evaded from judicial review by simply concluding that the regulation did not provide that.

[00:08:08] Speaker 03:
That therefore relies upon a misinterpretation of 3.156b and how it was intended to operate.

[00:08:26] Speaker 03:
It is critical to this case that

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this court understand as I believe it clearly has in its precedent in bond and broad the nature of the self-imposed obligation that the secretary placed upon himself.

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The secretary imposed upon himself the obligation to review evidence that was received during the course of the appeal period and make a specific assessment

[00:08:55] Speaker 03:
That is the requirement of 3.156b.

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And when the Veterans Court found that it did not apply, that was clearly a misinterpretation, because it assumed, if you will, facts that are not yet in evidence.

[00:09:11] Speaker 03:
And that is the factual determination that is required by 3.156b to determine whether or not there was a relationship between the new and material evidence of the second needs involvement

[00:09:25] Speaker 03:
that related back to the original claim, which then brings us full circle to what a claim constitutes.

[00:09:32] Speaker 03:
Is a claim global?

[00:09:33] Speaker 01:
Do you agree that secondary claims are not derivative of primary claims for effective date purposes?

[00:09:40] Speaker 03:
I'm sorry.

[00:09:40] Speaker 03:
I missed the first part of that.

[00:09:41] Speaker 01:
Sure.

[00:09:42] Speaker 01:
Do you agree that secondary claims are not derivative of primary claims for effective date purposes?

[00:09:48] Speaker 03:
Yes, Your Honor.

[00:09:50] Speaker 03:
That is the case law that was established by this court in both Ellington and Manzanarra.

[00:09:55] Speaker 03:
where this case differs is that that was based upon this court's interpretation of the interplay between 3.310 and 3.156B for the purposes of establishing effective date.

[00:10:09] Speaker 03:
3.156B is not an effective date regulation.

[00:10:15] Speaker 03:
It is a regulation that imposes an ongoing responsibility to the secretary under the legacy system

[00:10:22] Speaker 03:
to review, when received, new and material evidence to determine whether it relates back to the original claim.

[00:10:31] Speaker 03:
I see that I'm into my rebuttal time.

[00:10:33] Speaker 03:
If there's no further questions from the board, I'd like to reserve the balance.

[00:10:37] Speaker 04:
OK.

[00:10:37] Speaker 04:
Thank you, Mr. Carpenter.

[00:10:39] Speaker 04:
Ms.

[00:10:39] Speaker 04:
Tanton?

[00:10:40] Speaker 02:
May it please the court.

[00:10:42] Speaker 02:
The Veterans Court applied the correct standard when taking into account of the role of prejudicial error.

[00:10:47] Speaker 02:
The Veterans Court did not interpret 38 CFR section 3.156

[00:10:52] Speaker 02:
but instead simply applied this court's precedent, Mons Inaris, and the regulations and statute.

[00:10:58] Speaker 02:
Even if Section 3.156 was interpreted by the veterans court, that court did so correctly.

[00:11:05] Speaker 02:
Mr. Jordan sought to obtain more than one extra year of benefits for his right knee claim by contending, in essence, that it's the same claim as his left knee claim.

[00:11:17] Speaker 02:
He asserted that the May 2016 medical examination was new and material evidence

[00:11:22] Speaker 02:
under section 3.156 related to his claim for the left knee condition, and that somehow this caused the right knee claim to have the same effective date as the left knee claim, the primary claim.

[00:11:37] Speaker 02:
And the board found that the primary and secondary claims could not be assigned the same effective date in this fashion.

[00:11:45] Speaker 02:
The board did not specifically cite section 3.156, but nonetheless it reviewed Mr. Jordan's briefing.

[00:11:52] Speaker 02:
which focused on Section 3.156, Appendix Pages 203-208.

[00:12:00] Speaker 02:
The board found there was no basis in the relevant law for Mr. Jordan's claimed effective dates.

[00:12:05] Speaker 02:
And therefore, in effect, the board found that the purported new and material evidence was not relevant to the right new claims and effective date.

[00:12:14] Speaker 02:
The court has acknowledged in Morse v. McDonough from 2021, the board

[00:12:20] Speaker 02:
can in effect consider an issue as it did here.

[00:12:24] Speaker 02:
The Veterans Court noted and agreed with Mr. Jordan that the board had failed to address that argument, but correctly concluded that 3.156 has no relationship to the determination of effective dates for a secondary claim.

[00:12:42] Speaker 02:
Thus, the board's failure to specifically cite 3.156 in its decision was harmless error.

[00:12:49] Speaker 02:
Mr. Jordan's counsel has claimed that the Veterans Court considered facts not in evidence, but this is not correct.

[00:12:57] Speaker 02:
It was simply a question of the legal issues and the application of regulations.

[00:13:04] Speaker 02:
The Veterans Court applied the correct standard set forth in Sanders to take due account of the rule of prejudicial error.

[00:13:13] Speaker 02:
It simply applies the rule of harmless error from civil cases in which a

[00:13:19] Speaker 02:
claimant must explain to the Veterans Court how the error to which he points could have made any difference.

[00:13:25] Speaker 02:
The burden is properly on the veteran given, as explained in standards, this is not a criminal case.

[00:13:32] Speaker 02:
And this is a standard homeless error situation seen in any civil case.

[00:13:36] Speaker 02:
The lower court did not explicitly address an argument, the court here, and remanded the futile and inefficient

[00:13:45] Speaker 02:
This would really result in unnecessarily protracted Veterans Court proceedings and proceedings before the court.

[00:13:54] Speaker 02:
Mr. Carpenter has mentioned the recent slaughter decision.

[00:13:59] Speaker 02:
It's distinguishable from this case and did not change from the 7th standard.

[00:14:04] Speaker 02:
We understand the court in slaughter to have applied the explanation in the Supreme Court's standards decision that in certain cases,

[00:14:14] Speaker 02:
the circumstances of the case would make the harm obvious.

[00:14:19] Speaker 02:
In that case, if the board had applied a different diagnostic code, the veteran would have had a 50% rating rather than a 40% rating.

[00:14:28] Speaker 02:
Here, the lack of prejudice is not based on possible outcomes in terms of the benefits with the veteran, but instead based

[00:14:36] Speaker 02:
on the fact that it supports consideration of a legal argument, the court has ignored what is making no difference.

[00:14:43] Speaker 05:
I've got to say, I don't understand this whole harmless error discussion.

[00:14:47] Speaker 05:
It seems to me it's a convoluted way to approach this case.

[00:14:51] Speaker 05:
The question is what this regulation 156 means.

[00:14:56] Speaker 05:
And I don't see, if the regulation is inapplicable, how it's error in the first place not to discuss it.

[00:15:07] Speaker 02:
was wrong, that is true.

[00:15:11] Speaker 02:
We agree that the Veterans Court did what Mr. Jordan claims it didn't do, which is address the error and address the reported error by looking into the question of what 3.156 means and whether it could have had any effect.

[00:15:30] Speaker 02:
Therefore, unlike in slaughter, the Veterans Court reached the substantive issue

[00:15:36] Speaker 02:
And that certainly means that Mr. Jordan cannot prevail on the simple challenge now to the question of the standard applied to the harmless error considerations since Mr. Jordan acknowledges that secondary claims do not have the same effective date as primary claims.

[00:16:02] Speaker 02:
certainly there was no misinterpretation of section 3.156 by the Veterans Court.

[00:16:09] Speaker 02:
The Veterans Court relied on this court's holding in Mons Inaris and other decisions.

[00:16:14] Speaker 02:
It didn't interpret section 3.156, so we've argued that the court lacks jurisdiction to consider any purported misinterpretation by the Veterans Court since there was no interpretation.

[00:16:29] Speaker 02:
The Visions Court noted that Mr. Jordan had not supported his legal argument.

[00:16:33] Speaker 05:
If the regulation applied and they didn't discuss it, that would be an error, right?

[00:16:37] Speaker 05:
I mean, you can't say, because they failed to discuss it, that somehow we can't review the error.

[00:16:45] Speaker 02:
The Board, in essence, considered 3.1 through 6 because it looked at the unreliability.

[00:16:52] Speaker 05:
Do you understand the point?

[00:16:55] Speaker 05:
You seem to be arguing that because the board didn't discuss the regulation, that we have no jurisdiction.

[00:17:01] Speaker 05:
That can't be true.

[00:17:02] Speaker 05:
I mean, if the regulation applies and they made a mistake by not discussing it, we can review that, right?

[00:17:11] Speaker 02:
Yes, sir.

[00:17:11] Speaker 02:
I'm sorry.

[00:17:12] Speaker 02:
Maybe I misspoke.

[00:17:13] Speaker 02:
I meant that the Veterans Court did not interpret section 3.156 when it

[00:17:20] Speaker 02:
But when it did its consideration of the board's conclusions about effective date, it simply explained that the precedent... But if they made a mistake, we can review it, right?

[00:17:37] Speaker 02:
If the board made a mistake in not... Ignoring the regulation that governs.

[00:17:43] Speaker 05:
And ignoring the regulation that governs here, they made a mistake.

[00:17:47] Speaker 02:
We can review it.

[00:17:50] Speaker 02:
We are looking at the Veterans Court and the Veterans Court's application of 3.156.

[00:17:59] Speaker 02:
The court can review the Veterans Court's interpretation if it made one of 3.156.

[00:18:06] Speaker 02:
We argued that the Veterans Court didn't make any interpretation of 3.156.

[00:18:12] Speaker 02:
It simply applied the law to the facts.

[00:18:17] Speaker 02:
But the facts were the dates of the correspondence.

[00:18:20] Speaker 02:
April 11, 2006, and also the February 2005 primary claim for an increased rating as to the left knee.

[00:18:36] Speaker 02:
Again, we also note that Mr. Jordan argued that the Sanders decision by the Supreme Court is distinguishable.

[00:18:50] Speaker 02:
It's reasoning was not limited to the issues of notice.

[00:18:57] Speaker 02:
And this case presents an easier case than Sanders.

[00:19:02] Speaker 02:
Simply the only question is the legal argument about whether 3.156 has any application to the issues in this case, which it does not.

[00:19:14] Speaker 02:
And Mr. Jordan made some arguments about natural effects,

[00:19:19] Speaker 02:
But here there was no conclusion by the Veterans Court related to natural effects in Sanders and the Supreme Court stating that the Veterans Court would have to be the court to make such a finding since it sees sufficient case-specific raw material in Veterans cases, not this court.

[00:19:36] Speaker 02:
And as for solicitude to Veterans, this appears to be part same generalization that the Veterans Court would need to make in the first instance

[00:19:48] Speaker 02:
And certainly, the Supreme Court has rejected hard and fast rules instead of applying a case-by-case analysis to questions of harmless error, removing the burden from veterans.

[00:20:01] Speaker 02:
As Mr. Jordan argues, that would be such a hard and fast rule.

[00:20:09] Speaker 02:
And for these reasons, we request that the court affirm the decision of the board, but conclude that it

[00:20:17] Speaker 02:
last restriction to consider the recorded interpretation of 3.156.

[00:20:25] Speaker 02:
Thank you.

[00:20:27] Speaker 05:
OK, Mr. Farpon here.

[00:20:30] Speaker 03:
May it please the court, I'm a little confused by the government's argument because they seem to be undermining the notion of the fact that the Veterans Court made an interpretation by saying they made no interpretation.

[00:20:45] Speaker 03:
If they made no interpretation,

[00:20:47] Speaker 03:
that it doesn't seem to me that this court could find that they concluded that it didn't apply.

[00:20:53] Speaker 03:
As I read the decision, the decision does not do anything other than conclude at Appendix 6 at the end of the carryover paragraph that secondary claims are not derivative of primary claims for effective date purposes, a matter at which we do not dispute.

[00:21:12] Speaker 03:
That was why we presented the issue before the board

[00:21:15] Speaker 03:
in order to find out whether or not 3.156 applied in this context as opposed to in the secondary claim context in order to get a derivative effective date.

[00:21:28] Speaker 03:
The veterans court in its concluding paragraph says that the veterans, excuse me, the appellant has failed to demonstrate that 3.156C applies.

[00:21:40] Speaker 03:
Not that it found that 3.156C did not apply, but that

[00:21:44] Speaker 03:
Mr. Jordan did not demonstrate that in order to establish the failure to do so as being prejudice.

[00:21:54] Speaker 03:
It seems to me that this then becomes circular in terms of the Channery Doctrine.

[00:21:59] Speaker 03:
If, in fact, the Veterans Court made that interpretation, that cannot be an interpretation that was made by the board, because the board never addressed the issue.

[00:22:10] Speaker 03:
And that was the finding made by the Veterans Court.

[00:22:14] Speaker 03:
So the Veterans Court can't substitute its judgment and make fact finding that they did make a finding about the applicability of an issue that they never addressed.

[00:22:26] Speaker 03:
So hopefully, this court will recognize that no matter how convoluted all of this is, that Mr. Jordan has established that the Veterans Court in fact made an error of law in the interpretation in which it relied upon

[00:22:42] Speaker 03:
which relied solely upon the question of whether or not a secondary claim was derivative of a primary claim for effective date purposes.

[00:22:53] Speaker 03:
This court must recognize that 3.156C is not an effective date regulation.

[00:23:01] Speaker 03:
It is a regulation that stands for a specific VA obligation, which this court has defined in Barad and Bond, that requires an assessment

[00:23:12] Speaker 03:
of evidence received.

[00:23:14] Speaker 03:
They made no such assessment.

[00:23:17] Speaker 03:
We asked the board to address that issue.

[00:23:20] Speaker 03:
The board did not address the issue.

[00:23:22] Speaker 03:
We get to the Veterans Court and present the issue of whether or not that constitutes a misinterpretation of 3.156b and are told that we haven't demonstrated prejudice, even though the issue was never presented.

[00:23:35] Speaker 03:
Now we come before this court and are told, but you can't get prejudice if it didn't apply.

[00:23:42] Speaker 03:
I'm sorry, Your Honors.

[00:23:44] Speaker 03:
They didn't decide that.

[00:23:46] Speaker 03:
The Veterans Court did not make that determination.

[00:23:50] Speaker 03:
I hope the Court will agree and will reverse the decision below and send it back for re-adjudication.

[00:23:57] Speaker 03:
Unless there's further questions.

[00:23:59] Speaker 03:
Excuse me, Your Honors, from the panel.

[00:24:01] Speaker 05:
OK.

[00:24:01] Speaker 05:
Thank you, Mr. Farmer.

[00:24:02] Speaker 03:
Thank you.