[00:00:00] Speaker 02:
Our next case is Silver versus McDonald, 21-1976.

[00:00:04] Speaker 00:
May I please record Count Carpenter Perry on behalf of Mr. Philip Silva.

[00:00:11] Speaker 00:
Mr. Silva's case asserts that the Veterans Court relied upon a misinterpretation of the provisions of 38 USC 7104 and 7105.

[00:00:23] Speaker 00:
Those provisions guarantee a claimant that when they disagree with a decision of the VA,

[00:00:28] Speaker 00:
that there is a process that will facilitate an appeal for review of that decision by the Secretary by the Board of Veterans' Appeals in the two statutes that I mentioned.

[00:00:40] Speaker 00:
In this case, in 2010, Mr. Silva filed a claim that was seeking to reopen a previously denied claim for service connection for post-traumatic stress disorder.

[00:00:50] Speaker 00:
Post-traumatic stress disorder was his original claim.

[00:00:53] Speaker 00:
Post-traumatic stress disorder was his claim to reopen.

[00:00:57] Speaker 00:
That claim was denied.

[00:00:58] Speaker 00:
He timely filed a notice of disagreement, received a statement of the case, which identified the issue as service connection for post-traumatic stress disorder, and then he completed that appeal with the submission of a VA form 9.

[00:01:14] Speaker 03:
That was in August of 2012.

[00:01:24] Speaker 00:
That's correct, Your Honor.

[00:01:25] Speaker 00:
August of 2012.

[00:01:26] Speaker 03:
How did this, we have in November of 2012, this examination report.

[00:01:32] Speaker 03:
It's in November of 15 or something, 2012.

[00:01:35] Speaker 03:
How did that come about?

[00:01:37] Speaker 03:
How did that take place?

[00:01:38] Speaker 03:
Was it something that you had requested, or was it something that the VA decided to have?

[00:01:48] Speaker 00:
I am not, I'm not privy to how it came about.

[00:01:52] Speaker 00:
I know that I did not,

[00:01:54] Speaker 00:
on behalf of mister silver request that nor did mister silver request that examination but that examination was done by the v a at the days initiative and there was never a request for further development of the record

[00:02:10] Speaker 04:
Or there was a later submission, after the appeal was perfected, that indicated that there was additional- I guess what I'm wondering, you saw this PTSD claim, I can't remember the year now, I guess 2010?

[00:02:25] Speaker 04:
And when you filed that, which was interpreted as a request to reopen a previously denied PTSD claim, did you request further development of the record?

[00:02:38] Speaker 00:
but not expressly, Your Honor, no.

[00:02:41] Speaker 00:
But later, after the claim was submitted, or excuse me.

[00:02:45] Speaker 04:
But does the VA have the discretion under its duty to assist, to develop the record?

[00:02:52] Speaker 00:
I suppose it does, Your Honor.

[00:02:54] Speaker 04:
I can't remember if maybe in your substantive appeal you complained that there hadn't been a further development of the record or there hadn't been a medical examination that took place.

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

[00:03:14] Speaker 00:
I don't have a clear recollection, but I'm pretty sure that we did.

[00:03:20] Speaker 00:
Yes.

[00:03:21] Speaker 00:
All right.

[00:03:21] Speaker 04:
And so are you saying that it was wrong at that point for the VA to say, no, we should give Mr. Silva another medical examination to see if we can help develop his claim.

[00:03:38] Speaker 00:
No, Your Honor, we do not take issue with the VA assisting Mr. Silva.

[00:03:44] Speaker 00:
And Mr. Silva does appreciate the fact that as a result of that examination, they found that he had a psychiatric disability that was related to his injury to his ankle during active duty.

[00:03:56] Speaker 00:
However, that does not mean that he in any way waived or asked the VA to not consider the appeal for service connection for post-traumatic stress disorder.

[00:04:08] Speaker 00:
And in fact, during the pendency of that appeal, he submitted additional evidence, including a statement from his treating VA psychiatrist who was treating him for PTSD.

[00:04:20] Speaker 00:
Now, one of the anomalies in this process is that I am unable to find any evidence that the VA has ever treated him for either of the two psychiatric conditions that they've served as connected him for.

[00:04:34] Speaker 00:
The VA has treated him for post-traumatic stress disorder.

[00:04:39] Speaker 04:
And what relevance is that?

[00:04:41] Speaker 04:
I'm trying to figure out how does that fit into how I'm supposed to think about how to resolve this appeal.

[00:04:47] Speaker 00:
Well, the Veterans Court, based upon the submission of the secretary to them, relied upon their presidential decision in Clemens and said that the PTSD claim and the claim for the mood disorder, which he actually didn't make but was resolved in his favor, were not the same condition.

[00:05:08] Speaker 00:
and therefore, or excuse me, were the same condition.

[00:05:12] Speaker 00:
And therefore, there was no need to process his appeal.

[00:05:16] Speaker 00:
And the VA could unilaterally find that his appeal was a total grant of benefit by the intervening rating decision to grant him service connection, first for an unspecified mood disorder, which they later changed to a bipolar disorder.

[00:05:32] Speaker 04:
So if you disagreed with their finding that

[00:05:39] Speaker 04:
that December 2012 rating decision served as a total grant of relief on your 2010 claim.

[00:05:46] Speaker 04:
You could have filed a nod there saying this is a misinterpretation of my 2010 claim.

[00:05:54] Speaker 04:
and how it fits and interrelates with this 2012 rating decision.

[00:06:00] Speaker 00:
We could have, Your Honor.

[00:06:02] Speaker 00:
There was nothing that prevented us from doing that.

[00:06:04] Speaker 00:
And in 2020 hindsight, as the obvious course of this litigation took place,

[00:06:10] Speaker 04:
That may have been the better thing to do I'm just trying to understand it feels like what happened in that 2012 rating decision was You you you got an earlier rating decision from us But now that one has been mooted out by this new rating decision

[00:06:30] Speaker 04:
Take that one away.

[00:06:31] Speaker 04:
Here's your new rating decision.

[00:06:32] Speaker 04:
Congratulations.

[00:06:33] Speaker 04:
We did find a service-connected psychiatric disorder, and we have now reopened your claim to grant you this amount of service benefits for mood disorder.

[00:06:44] Speaker 04:
It's not PTSD, but nevertheless,

[00:06:46] Speaker 04:
We also, based on this new medical exam report, have concluded there's still no service-connected PTSD.

[00:06:55] Speaker 04:
And this is a total grant of relief on your claim.

[00:07:01] Speaker 04:
So I guess everything got rolled up into that new rating decision, or at least that seems like on its face what it's communicating.

[00:07:11] Speaker 04:
And if that is wrong,

[00:07:13] Speaker 04:
because in your view, you still had an ongoing separate PTSD claim, then I think the thing to have done in just trying to do an orderly process is to now try to attack that finding in that 2012 rating decision.

[00:07:33] Speaker 00:
That's not illogical.

[00:07:35] Speaker 00:
or unreasonable.

[00:07:36] Speaker 00:
However, Mr. Silva took the position that he had a plenty claim for PTSD that had been denied and was properly appealed and was in appeal status.

[00:07:47] Speaker 00:
And that he had, I'm sorry.

[00:07:49] Speaker 00:
Excuse me for interrupting.

[00:07:50] Speaker 03:
That's all right.

[00:07:52] Speaker 03:
But both you and the government agree that number one, certification had not yet taken place.

[00:08:00] Speaker 03:
Correct.

[00:08:01] Speaker 03:
And that the record had not yet gone up.

[00:08:05] Speaker 00:
that hadn't been transferred to the board.

[00:08:06] Speaker 03:
That's correct, Your Honor.

[00:08:09] Speaker 03:
So the regulations, as I understand it, provide that during that period, after an appeal is compiled, but before the record is sent up and certification takes place, new evidence can be considered by the RO.

[00:08:24] Speaker 03:
And that's what happened here.

[00:08:26] Speaker 00:
Well, that's correct, Your Honor.

[00:08:28] Speaker 00:
And I apologize for not noting it in my brief.

[00:08:34] Speaker 00:
course of all of this from 2010 to the present, the Congress amended the statute at 38 USC 7105 in February of 2013 that expressly provided in a new subparagraph E that if either, at the time of the original jurisdiction received the substantive appeal, the claimant's representative any submits evidence

[00:08:59] Speaker 00:
either to the agency of original jurisdiction or to the board for consideration in connection with the issue or issues with which disagreement was expressed, such evidence shall be subject to initial review by the board.

[00:09:14] Speaker 03:
But we're talking about what the situation was in 2012.

[00:09:19] Speaker 00:
Yes, Your Honor, but we submitted evidence in 2014

[00:09:24] Speaker 00:
And that evidence went directly to the issue of service connection for post-traumatic stress disorder.

[00:09:30] Speaker 00:
The question is, can the VA undo an ongoing appeal by simply pronouncing that there is a full grant of benefits?

[00:09:39] Speaker 03:
But how did it undo an appeal?

[00:09:41] Speaker 03:
It took in the new evidence from the November report.

[00:09:45] Speaker 03:
It looked at it.

[00:09:47] Speaker 03:
That report is very detailed.

[00:09:49] Speaker 03:
It came out with a conclusion.

[00:09:51] Speaker 03:
It said no PTSD.

[00:09:54] Speaker 03:
And I don't see how anything was undone.

[00:09:57] Speaker 03:
That could have been appealed.

[00:09:59] Speaker 00:
That could have been appealed, but he had an appeal in place.

[00:10:03] Speaker 00:
for the disability that he was being treated for at the VA for post-traumatic stress disorder.

[00:10:09] Speaker 00:
He took the position that the fact that they decided he had some other service-connected condition did not and should not have undone his appeal.

[00:10:19] Speaker 00:
The real substantive difference here, the harm to Mr. Silva is, is that the grant of service connection for the mood disorder was an effective date four years later.

[00:10:31] Speaker 00:
And the effective date if his appeal is resolved for service connection for PTSD in his favor goes back four years earlier to 2010.

[00:10:39] Speaker 00:
So it's unfair in this pro-veteran system for the VA to unilaterally make a determination.

[00:10:49] Speaker 00:
The appropriate thing to do under VA regulations.

[00:10:53] Speaker 03:
The rules and the regulations statute seems to contemplate a situation like this, where new evidence comes in

[00:11:01] Speaker 03:
and the VA, the RO, can act on it.

[00:11:04] Speaker 00:
It does, Your Honor.

[00:11:05] Speaker 00:
And that regulation pertains to a supplemental statement of the case in which evidence is received during the course of the appeal, and they make a different decision than the decision on appeal.

[00:11:16] Speaker 00:
And they continue the denial, the previous denial, of service connection for PTSD.

[00:11:21] Speaker 00:
If they had issued that supplemental statement of the case, then that appeal would have clearly continued and ultimately been certified.

[00:11:28] Speaker 04:
Let me see if I can understand something.

[00:11:30] Speaker 00:
If I could finish my answer to Judge Deschamps, the question that you asked about the regulation about certification, that is a regulation

[00:11:44] Speaker 00:
And it is an internal processing regulation and not a statutory mandate as 7104 and 7105 are.

[00:11:51] Speaker 03:
But 7104 says that the board is governed by the VA regulations.

[00:11:57] Speaker 00:
No, that they shall make their decisions in accordance with applicable regulations.

[00:12:02] Speaker 00:
And I do not believe that the failure to certify is anything other than a processing error in which they didn't get the appeal to the board as they should have many years before.

[00:12:16] Speaker 00:
The fact is that this appeal was never transferred to the board for a decision.

[00:12:21] Speaker 00:
I'm sorry.

[00:12:22] Speaker 00:
Go ahead.

[00:12:27] Speaker 04:
What if the December 2012 rating decision

[00:12:31] Speaker 04:
I guess, is it your view that it was somehow illegal of the VA to have issued that rating decision?

[00:12:41] Speaker 04:
No.

[00:12:42] Speaker 04:
Right.

[00:12:43] Speaker 04:
And if that rating decision had in fact

[00:12:48] Speaker 04:
after the medical exam report in November said, hey, this man, Mr. Silva, deserves PTSD, service-connected benefits, and 100% rating.

[00:13:03] Speaker 04:
This is a total...

[00:13:05] Speaker 04:
of the relief request, you'd be fine with that.

[00:13:09] Speaker 00:
Assuming that the effective date was 2010.

[00:13:13] Speaker 04:
Would you agree that that replacement rating decision of the earlier rating decision would have mooted the old appeal?

[00:13:23] Speaker 00:
His appeal, absolutely.

[00:13:24] Speaker 04:
Because the earlier rating decision is basically gone and been replaced by this new rating decision.

[00:13:30] Speaker 00:
It has resolved his disagreement.

[00:13:32] Speaker 04:
So I guess the question then is,

[00:13:35] Speaker 04:
The VA in its actual December 2012 rating decision did grant some relief, not everything that you wanted, for a psychiatric condition, and then declared this is a total grant of the relief requested.

[00:13:54] Speaker 04:
And why doesn't that rating decision likewise serve as a replacement rating decision for the earlier one that you are

[00:14:02] Speaker 04:
that you were then attempting to appeal.

[00:14:05] Speaker 04:
And so therefore, not only has the underlying rating decision basically been trumped by the new rating decision, likewise, any appeal or attempted appeal from that earlier rating decision has also gone away.

[00:14:16] Speaker 00:
Because Congress's intent is clear in 7105.

[00:14:19] Speaker 00:
The appeal is initiated based upon a disagreement with a decision made by the VA.

[00:14:27] Speaker 00:
The decision made by the VA was the denial of service connection for PTSD.

[00:14:32] Speaker 02:
Okay, Mr. Carpenter, thank you.

[00:14:36] Speaker 02:
We'll restore some of your rebuttal time.

[00:14:41] Speaker 02:
Let's hear from Mr. Hunter.

[00:14:44] Speaker ?:
Is that right?

[00:14:45] Speaker 01:
That's correct, David.

[00:14:52] Speaker 01:
May I please record?

[00:14:54] Speaker 01:
Despite Mr. Silva's characterizations of the case here, what happened in this case was exemplary.

[00:14:59] Speaker 01:
The RO did exactly what it was supposed to do.

[00:15:01] Speaker 01:
Speak up just a tiny bit.

[00:15:02] Speaker 01:
The RO did exactly what it was supposed to do.

[00:15:05] Speaker 01:
Mr. Silva disagreed with the decision issued in January 2011.

[00:15:09] Speaker 01:
He issued, he, sorry, excuse me, I got lost in the facts.

[00:15:17] Speaker 01:
He filed a substantive appeal in August 2012.

[00:15:20] Speaker 01:
And to clarify one of the questions that was asked earlier, in that substantive appeal, he expressly requested that the VA should have obtained a necessary medical opinion as to whether his PTSD related to his service and to re-adjudicate his claim.

[00:15:35] Speaker 01:
That is at Appendix 61.

[00:15:36] Speaker 01:
I believe your honor was asking counsel about that.

[00:15:40] Speaker 01:
The RO reviewed the substantive appeal and acted on it in response to a direct request.

[00:15:48] Speaker 01:
obtains an additional opinion, just as requested.

[00:15:51] Speaker 01:
And then, upon reviewing the PTSD condition, found some problems.

[00:15:55] Speaker 01:
Said, well, this stressor for the ankle sprain doesn't appear to meet the criteria.

[00:15:59] Speaker 01:
The other stressor for the gas tank incident is post-service, so we can't grant service connection.

[00:16:03] Speaker 01:
But what the VA did instead was say, but we can attach a mood disorder.

[00:16:07] Speaker 01:
We can find that these symptoms, the symptomatology, does fit under mood disorder.

[00:16:11] Speaker 01:
We can grant service connection.

[00:16:12] Speaker 01:
We can get you that now.

[00:16:14] Speaker 01:
Service connection is a big benefit for a veteran.

[00:16:16] Speaker 03:
Let me ask you one question on this procedure.

[00:16:19] Speaker 03:
Why at that point did the RO not issue a supplemental statement of the case?

[00:16:26] Speaker 01:
I don't have a statement of justification from them why they did it.

[00:16:29] Speaker 03:
In other words, do you think it's a matter of law under the regulations, at that point they should have issued a supplemental statement of the case?

[00:16:38] Speaker 01:
They certainly had the option to issue a supplemental statement of the case.

[00:16:41] Speaker 01:
What I think the RO is doing there is acting in accordance with a number of their attendant duties.

[00:16:47] Speaker 01:
One is the duty to assist the claimant.

[00:16:48] Speaker 01:
But another, and the whole statutory structure supports this, is not to send granted claims up to the board.

[00:16:55] Speaker 01:
When an issue has been resolved at the lowest level possible, the entire statutory and regulatory structure is meant to prevent those claims from moving on.

[00:17:02] Speaker 01:
You have to file an OD if you disagree.

[00:17:05] Speaker 01:
You have to further disagree with the statement of the case after it comes out in response to your NOD.

[00:17:10] Speaker 01:
The idea being that we don't want to clog the board in an already clogged system with decisions that claimants don't have an issue with or don't dispute.

[00:17:20] Speaker 02:
After the RRO processed the new medical examination and that part of the case, did it notify Mr. Silva about it and any steps that he could take?

[00:17:32] Speaker 01:
I believe the notification comes in the form of the December 2012 decision.

[00:17:36] Speaker 01:
If you're asking if there's further documentation, I don't have that.

[00:17:39] Speaker 01:
I'm sorry?

[00:17:40] Speaker 01:
I don't have that in my head.

[00:17:41] Speaker 01:
If there is further documentation, I don't have it to put before the court at this time.

[00:17:45] Speaker 04:
I guess the 2012 decision, the December 2012 decision, did notify Mr. Silva that

[00:17:52] Speaker 04:
that the VA saw this as a total grant of the relief requested and then made it clear that Mr. Silva has his appeal rights preserved for this particular rating decision?

[00:18:04] Speaker 01:
That's right, Your Honor.

[00:18:04] Speaker 01:
That's the document we would rely on.

[00:18:06] Speaker 01:
If there was an earlier document, I don't know.

[00:18:07] Speaker 01:
But we do believe that the decision that was sent to him, which he does not allege any flaw in or that he didn't receive, does say several times, this is a total grant of the issues on appeal for PTSD.

[00:18:17] Speaker 01:
It says you did not.

[00:18:18] Speaker 01:
our examination finds that you do not have PTSD.

[00:18:22] Speaker 01:
And then it grants in great detail, here's what we are granting you.

[00:18:25] Speaker 01:
Here's a 10% grant here, service connection.

[00:18:28] Speaker 01:
And it notified him of his appeal rates.

[00:18:32] Speaker 01:
So to the extent that duty was owed, we believe it was filled by that document.

[00:18:39] Speaker 01:
So the course of events demonstrates

[00:18:41] Speaker 01:
that the RO did exactly what this court has been telling the VA to do for 35 years.

[00:18:46] Speaker 01:
Assist the claimant.

[00:18:48] Speaker 01:
Read the documents that are being put before you, and grant benefits efficiently and early as possible.

[00:18:53] Speaker 01:
That's what the RO did.

[00:18:55] Speaker 01:
And what they're being told is, well, there's a timing issue.

[00:18:58] Speaker 01:
There's a regulatory problem here.

[00:19:01] Speaker 01:
But actually, nothing in the law prevents the RO from doing this.

[00:19:05] Speaker 03:
There is no statute of limitations.

[00:19:07] Speaker 03:
Let me ask you.

[00:19:08] Speaker 03:
We talked a little bit about, I guess, the possibility of the statement of the case.

[00:19:15] Speaker 03:
And that would flow from some of the supplemental statement of the case.

[00:19:20] Speaker 03:
That would flow from some of the VA regulations that were in effect at the time, specifically 38 CFR 19.31A.

[00:19:33] Speaker 03:
OK?

[00:19:33] Speaker 03:
Yes, sir.

[00:19:36] Speaker 03:
Now, we know in the Supplenell State that the case wasn't issued.

[00:19:41] Speaker 03:
To what relevance here, what relevance, if any, do you attach to the regulation at 3.156b?

[00:19:49] Speaker 03:
Because that says, new and material evidence received prior to the expiration of the appeal period.

[00:19:57] Speaker 03:
OK?

[00:19:58] Speaker 03:
So we have new and material evidence, right?

[00:20:00] Speaker 01:
Yes, sir.

[00:20:01] Speaker 03:
And it's received prior to the expiration of the appeal period, correct?

[00:20:04] Speaker 01:
Yes, sir.

[00:20:06] Speaker 03:
or prior to the appellate decision, if the time in the appeal has been filed.

[00:20:11] Speaker 03:
So it's prior to that.

[00:20:13] Speaker 03:
And then it goes on.

[00:20:21] Speaker 03:
Will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

[00:20:29] Speaker 03:
And that claim is the claim for PTSD, correct?

[00:20:34] Speaker 03:
Yes, Your Honor.

[00:20:36] Speaker 03:
So it seems to me that that regulation contemplates, and tell me if you think I'm wrong, that that regulation contemplates the receipt of the kind of evidence that was presented here.

[00:20:50] Speaker 01:
Yes, absolutely, Your Honor.

[00:20:51] Speaker 01:
3.156.

[00:20:52] Speaker 03:
So what does that mean?

[00:20:54] Speaker 03:
What happens when 3.156B goes into effect, as you say is the case here, and the evidence came in, the RO acted on it and came out with a decision.

[00:21:05] Speaker 03:
What should happen next?

[00:21:07] Speaker 01:
Well, the effect of that is to reopen the claim, which is what the decision says.

[00:21:11] Speaker 01:
They said we reopen.

[00:21:13] Speaker 01:
That's right.

[00:21:13] Speaker 01:
They said we reopen the claim.

[00:21:14] Speaker 01:
3.156A says that a claimant can reopen with the submission of new and material evidence.

[00:21:20] Speaker 01:
3.156B follows that.

[00:21:23] Speaker 01:
That is the definition of reopening a claim is when new and material evidence leads to a re-adjudication.

[00:21:28] Speaker 01:
Now, Mr. Silva claims the VA didn't reopen.

[00:21:32] Speaker 01:
We're appealing the denial of reopening.

[00:21:33] Speaker 01:
Well, that's not a denial of reopening.

[00:21:35] Speaker 01:
That's called reopening.

[00:21:36] Speaker 01:
When you look at new evidence and you re-adjudicate the claim.

[00:21:39] Speaker 03:
He's saying he reopened it, but not enough for me.

[00:21:43] Speaker 03:
He's thankful for the 10% rating.

[00:21:46] Speaker 01:
for the mood disorder, but he thinks there should have been more.

[00:21:50] Speaker 01:
Yes, Your Honor, and we dispute that in a number of different ways.

[00:21:53] Speaker 01:
Had I moved on or trod over your question, I didn't know if I had answered your question.

[00:21:57] Speaker 03:
No, in other words, you're saying you think that this case falls, or what happened here comes under 3.156, correct?

[00:22:06] Speaker 03:
Yes, that's right.

[00:22:09] Speaker 03:
And the result is, if he was dissatisfied with the result, he should have filed an NOD with respect to that.

[00:22:16] Speaker 01:
Yes, sir.

[00:22:16] Speaker 01:
And I can say for sure that it falls under it, because in Appendix 63, the decision he was issued makes a shorthand reference to 3.156 by saying, on consideration of new and material evidence as of the examination, there's no way to walk out of that.

[00:22:30] Speaker 01:
That is a reference to it.

[00:22:31] Speaker 03:
So you're saying it's a 3.156 situation, not a supplemental statement of the case situation.

[00:22:39] Speaker 03:
Yes, sir.

[00:22:40] Speaker 04:
Is there a point in time where the VARO is without authority to do anything more and everything is left up into the board's hands?

[00:22:55] Speaker 04:
Where there's a certain juncture where now the VA is shut off from doing anything more and the board has to issue a decision.

[00:23:05] Speaker 04:
In other words, when does

[00:23:07] Speaker 04:
jurisdiction formally transfer away from the RO and completely into the board?

[00:23:13] Speaker 01:
Yes, Your Honor.

[00:23:14] Speaker 01:
Short answer is when the record is certified and transferred to the board.

[00:23:18] Speaker 01:
However, there are continuing duties for the RO that continued under the legacy system throughout the appeal process.

[00:23:23] Speaker 01:
The duty to assist includes the duty to complete the record, re-adjudicate the claim.

[00:23:29] Speaker 01:
But I think once the record has been certified and transferred to the board.

[00:23:33] Speaker 04:
There's nothing in the statute that says that.

[00:23:35] Speaker 04:
Am I right?

[00:23:37] Speaker 04:
That says which part, Your Honor?

[00:23:38] Speaker 04:
That says that jurisdiction transfers to the board once the record has been certified.

[00:23:44] Speaker 01:
No, I don't believe there is anything in the statute.

[00:23:46] Speaker 04:
Is there something in the regulation that says jurisdiction has been transferred to the board once the record has been certified?

[00:23:52] Speaker 01:
I don't know.

[00:23:53] Speaker 01:
We may have cited that in our brief, but I don't have it on the topic.

[00:23:56] Speaker 04:
I think there might be a dusty old VA general counsel opinion that says that very thing.

[00:24:01] Speaker 04:
But I don't know if there's a regulation that says it quite right now.

[00:24:04] Speaker 01:
Right.

[00:24:05] Speaker 01:
I don't believe so either.

[00:24:08] Speaker 01:
If there were, we probably would have cited it, or Mr. Carpenter would have cited it, I suppose.

[00:24:19] Speaker 01:
So having spent most of my time on the statutory argument, if the court has any other questions on that particular argument.

[00:24:26] Speaker 01:
We raised a number of issues in our brief that give this court reasons to dismiss the appeal.

[00:24:31] Speaker 01:
The strongest one that we would urge is that the argument simply wasn't presented to the Veterans Court.

[00:24:37] Speaker 01:
There is no reference in Mr. Silva's brief to the Veterans Court of 7104, 7105.

[00:24:42] Speaker 01:
But these are the statutes he urges compel his victory in the appeal.

[00:24:46] Speaker 01:
Well, if his entire argument is based on the statutes, you have to raise them to the court below.

[00:24:49] Speaker 01:
The waiver is discretionary for this court.

[00:24:51] Speaker 01:
But it should be noted that it just simply wasn't presented.

[00:24:54] Speaker 01:
The Veterans Court decision cites 7104 and 7105, but these are for ancillary matters and not at all interpreting the statute.

[00:25:03] Speaker 01:
Nevertheless, in Mr. Silva's appeal, he says, well, they must have relied on an erroneous interpretation of these statutes.

[00:25:09] Speaker 01:
It must have relied on them.

[00:25:10] Speaker 01:
Otherwise, they would have found for us.

[00:25:12] Speaker 01:
That is the hallmark statement of a claim you should have presented.

[00:25:23] Speaker 02:
of facts to the law?

[00:25:27] Speaker 01:
Well, we argue that we have a few arguments in the brief.

[00:25:32] Speaker 01:
But we do have a lack of jurisdiction argument that there is application of facts to the law at issue here.

[00:25:37] Speaker 01:
One of the facts being, did the Auro decision resolve the claim in its entirety?

[00:25:44] Speaker 01:
Was it a grant of all the issues on appeal?

[00:25:46] Speaker 01:
That was something that the Auro determined.

[00:25:48] Speaker 01:
And since it wasn't appealed, and the board affirmed that,

[00:25:53] Speaker 01:
We would argue that that is issues of fact.

[00:25:57] Speaker 02:
So you agree, then, that there is a legal issue that's been presented before the court here?

[00:26:04] Speaker 01:
Well, our lack of jurisdiction argument, yes, there is a legal issue.

[00:26:07] Speaker 01:
Our lack of jurisdiction argument is phrased in order to limit that there are some issues that we do not believe the court can address.

[00:26:14] Speaker 04:
You're saying there's a legal issue presented to the court, but it's a waived legal issue.

[00:26:19] Speaker 01:
That's correct.

[00:26:20] Speaker 01:
I should have phrased it that way.

[00:26:25] Speaker 01:
One last statement on the waiver point, and then I'll sit down, is that Mr. Silva's response in his reply cannot be a correct statement of the law on waiver.

[00:26:33] Speaker 01:
What he says is that although the issue wasn't right because the Veterans Court had not yet relied on these erroneous interpretations, but a careful look at that argument would show that it creates an exception that swallows the rule.

[00:26:48] Speaker 01:
it switches the burden.

[00:26:50] Speaker 01:
Instead of the litigant's burden to present their arguments to a court, instead what has to happen is that the court has to anticipate the arguments, or else they get through the fence.

[00:26:59] Speaker 01:
And that's not usually, that's not ever how courts determine waiver.

[00:27:02] Speaker 01:
Now, waiver is discretionary.

[00:27:03] Speaker 01:
But we would urge that this is not what this court has ever stated about waiver.

[00:27:06] Speaker 01:
And Singleton v. Shinseki would tend to bar this kind of argument, which was not presented below.

[00:27:12] Speaker 01:
There's no further questions from the court.

[00:27:16] Speaker ?:
Thank you.

[00:27:23] Speaker 02:
Four minutes.

[00:27:24] Speaker 00:
Thank you very much, Adam.

[00:27:27] Speaker 00:
Quickly on the jurisdictional question, number one, Mr. Silva did present it below.

[00:27:33] Speaker 00:
His entire appeal below was on the question of whether or not the board had erred by failing to address the issue.

[00:27:39] Speaker 00:
Now, he did not specifically rely upon those statutes because we believe that those statutes were implicit both in the argument and in the requirement of the board to have addressed the issue in the first place.

[00:27:51] Speaker 00:
But regardless, this court's jurisdiction is predicated on case determinations.

[00:27:58] Speaker 00:
This court's jurisdiction is based upon what the decision was below.

[00:28:03] Speaker 00:
And the decision below said that there was no obligation for the board to have addressed the pending appeal.

[00:28:10] Speaker 00:
That matter is before this court properly, and it's within its jurisdiction.

[00:28:17] Speaker 00:
Judge Shaw, I believe that 38 CFR 19.31A is mandatory and not permissive.

[00:28:25] Speaker 00:
And I also believe, Judge Shin, that there is a general counsel's opinion on the issue.

[00:28:33] Speaker 00:
And I will submit it as supplemental authority.

[00:28:36] Speaker 00:
I cannot give you the number off the top of my head.

[00:28:38] Speaker 00:
But as Judge Shaw triggered in my thinking,

[00:28:46] Speaker 00:
Regulatory provision.

[00:28:48] Speaker 02:
What general counsel opinion are you referring to?

[00:29:02] Speaker 00:
There is a general counsel's opinion that says that

[00:29:08] Speaker 00:
When the VA receives new and material evidence within the appeal time, they are obligated to make a decision.

[00:29:17] Speaker 00:
And they specifically reference section 3.156b as part of the regulatory requirement that requires the issuance of the supplemental statement of the case.

[00:29:27] Speaker 00:
And in this case, they made a partially favorable decision, but not a fully favorable decision.

[00:29:33] Speaker 00:
The partially favorable was to grant it on the grounds

[00:29:36] Speaker 00:
or excuse me, on the basis of the mood disorder and not on the PTSD.

[00:29:40] Speaker 04:
The VA opinion I was referring to.

[00:29:42] Speaker 04:
Oh, I'm sorry.

[00:29:45] Speaker 04:
The view of the GC that jurisdiction transfers to the board to decide an appeal once the record has been certified.

[00:29:56] Speaker 04:
It has received the certified record.

[00:29:57] Speaker 00:
Oh, I'm sorry.

[00:29:59] Speaker 00:
I misunderstood that.

[00:30:01] Speaker 00:
That's OK.

[00:30:01] Speaker 00:
But in that regard, that is controlled by the 2013 amendment to 7105.

[00:30:10] Speaker 00:
It adds the E1 provision.

[00:30:13] Speaker 00:
So it does change that going forward from February of 2013, that when evidence is submitted

[00:30:21] Speaker 00:
during the pendency of an appeal under the legacy system that the board was to consider that in the first instance unless there was an express waiver by the claimant and a request to have the RO considered in the first instance.

[00:30:38] Speaker 03:
That wouldn't apply here.

[00:30:39] Speaker 00:
No, that did predate

[00:30:42] Speaker 00:
uh... that would be what you just described it took place in twenty thirteen wouldn't apply to this case because this was in december of twenty twelve yes and no your honor what i was referring to that that applied to was the april twenty fourteen submission that was made uh... pursuant to three point one five six b because this was uh... pending

[00:31:07] Speaker 00:
that submitted the medical opinion from his treating VA doctor about his continuing treatment for post-traumatic stress disorder, and I believe also submitted some Social Security records at that time as well.

[00:31:20] Speaker 00:
I may be wrong in that recollection.

[00:31:22] Speaker 03:
But clearly, Dr. Goss's... What statute is this, or the one in effect?

[00:31:28] Speaker 00:
I'm sorry, Your Honor.

[00:31:29] Speaker 03:
What you're saying, there was a change in the law in February 2013?

[00:31:32] Speaker 00:
Yes.

[00:31:33] Speaker 00:
It's 38 USC 7105, the statute that we rely upon in this appeal.

[00:31:39] Speaker 00:
And it added subsection E1.

[00:31:42] Speaker 00:
And the effective date of that amendment was February of 2013.

[00:31:54] Speaker 00:
I see I have very little time left, so I'm not going to go into another subject unless there's any questions from the panel.

[00:32:00] Speaker 02:
No, we thank you, Mr. Carpenter.

[00:32:02] Speaker 00:
And I thank the panel.