[00:00:00] Speaker 01:
Next case is William Bragg versus the Secretary of Veterans Affairs 2021-22-87, Mr. Carpenter.

[00:00:07] Speaker 01:
Good morning.

[00:00:08] Speaker 01:
Thank you very much, Your Honor.

[00:00:11] Speaker 04:
May it please the Court, Kenneth Carpenter appearing on behalf of Mr. William Bragg.

[00:00:15] Speaker 04:
The matter at issue in this appeal is a question of law regarding the legal test to be used to determine whether or not a claim has been reasonably raised in an original formal claim for service-connected compensation.

[00:00:29] Speaker 04:
We believe that the Veterans Court incorrectly relied upon the legal test for an informal claim based upon the previously or then existing provisions of 38 CFR 3.155.

[00:00:43] Speaker 04:
The difference being that the conditions for the raising of a reasonable claim in an original claim are set out by this Court's decision in Sellers and deal with the requirement that the formal claim identify

[00:00:59] Speaker 04:
uh... at least to some high level of level of generality the injury for which compensation is being sought doesn't sellers specifically say the standard is identical for formal and informal claims but it does so your honor so what difference does it make here well i think the difference that it makes here is is that by using the uh... standards articulated by the regulation they limited the consideration of whether or not uh... the

[00:01:28] Speaker 04:
test under sellers was in fact met.

[00:01:32] Speaker 04:
And the test under sellers is clearly met here because the evidence was that there was a serious injury in service that rendered Mr. Bragg unconscious for 32 hours.

[00:01:46] Speaker 00:
I understood the issue you're presenting to be whether or not the Veterans Court applied the right legal standard.

[00:01:53] Speaker 04:
Correct.

[00:01:54] Speaker 00:
The Veterans Court applied sellers, correct?

[00:01:57] Speaker 04:
And in doing so, they applied it incorrectly.

[00:02:00] Speaker 00:
Okay.

[00:02:00] Speaker 00:
But they did apply Sellers.

[00:02:02] Speaker 00:
Yes.

[00:02:03] Speaker 04:
They did make reference to Sellers.

[00:02:05] Speaker 00:
And Sellers is the right legal test.

[00:02:07] Speaker 04:
And Sellers is the correct legal standard.

[00:02:09] Speaker 04:
And the question then becomes whether or not in applying Sellers that they applied the Sellers test or whether they in fact diverged from that test and relied upon the test for an informal claim, which has a different legal criteria.

[00:02:26] Speaker 04:
I understand the sellers made the comment that they accomplished the same thing, but they do so in very different ways.

[00:02:34] Speaker 04:
They examine the original application based upon, if you will, the totality of circumstances that are presented by the evidence of record, as opposed to expressing a clear intent to file a specific claim going forward.

[00:02:52] Speaker 04:
a informal claim is something that is done in order to initiate something that has not previously been presented to the agency this was an original claim in which all of the uh... resulting service-connected injuries were not considered and they were clearly overlooked where where where did they not consider the medical because they did not adjudicate the issue of a head injury

[00:03:23] Speaker 03:
but that's a question of whether the medical report showed a head injury.

[00:03:27] Speaker 03:
I thought they concluded that it didn't.

[00:03:30] Speaker 04:
And they did so incorrectly based upon the evidence of record.

[00:03:34] Speaker 04:
In our view, Your Honor, you can't be... That's a fact question, isn't it?

[00:03:37] Speaker 04:
Well, I don't believe so, Your Honor, because the legal test is whether or not it is or isn't reasonably raised.

[00:03:45] Speaker 04:
And the evidence of record that was before the agency in 1967 was that there, Mr.

[00:03:53] Speaker 04:
Bragg had been unconscious for 32 hours.

[00:03:57] Speaker 04:
Now, to me, it's impossible not to make the logical connection between being unconscious and a head injury.

[00:04:05] Speaker 03:
Well, fair enough.

[00:04:06] Speaker 03:
But that's a fact question, it would seem, rather than a legal question.

[00:04:11] Speaker 04:
And that is a legitimate question for inquiry in this

[00:04:17] Speaker 04:
consideration, Your Honor, as to whether or not the legal test that was created originally by this court in Roberson about looking at a pro se appellant's claim in the light most favorable to the claimant to express any reasonable claim raised by the injury.

[00:04:36] Speaker 01:
But this is a cue claim, isn't it?

[00:04:39] Speaker 04:
It is, Your Honor.

[00:04:41] Speaker 01:
Which is fact.

[00:04:43] Speaker 04:
we know your honor it can also be a question of law and and we believe that the question of law by this pro se appellant what we have here your honor is a person who has suffered from a traumatic brain injury for which the v a has granted service connection for and move back the original effective date to the date of a second application where he used the term a brain injury and they granted

[00:05:10] Speaker 04:
the original claim based upon TBI and then granted an earlier claim because these same service records that were before the VA in 1967 were not considered for purposes of reconsideration under 3.156C.

[00:05:29] Speaker 04:
We are now asking Mr. Bragg, a

[00:05:35] Speaker 04:
totally disabled veteran from a brain injury, as asked as a pro se claimant to review the 2013 board decision for Q. The legal standard set out by the board.

[00:05:52] Speaker 03:
Did the board say here that the medical report showed a head injury?

[00:05:58] Speaker 03:
I think the veteran did say that.

[00:06:04] Speaker 03:
So this is on A5.

[00:06:06] Speaker 03:
The board assessed the medical report and noted that it implied the appellant had injured his head, right?

[00:06:12] Speaker 03:
Yes.

[00:06:13] Speaker 03:
So they read it as noting a head injury, but no symptoms resulting from a head injury as opposed to ocular problems.

[00:06:25] Speaker 04:
And Your Honor, that goes to the question of what 1110 is intended to compensate for.

[00:06:30] Speaker 04:
And it is intended to compensate for an injury

[00:06:34] Speaker 04:
that happens in service and results in a disability.

[00:06:37] Speaker 04:
We submit that being unconscious for 32 hours, having been in three different military hospitals over a year and a half, constitutes evidence of a disability for a head injury.

[00:06:49] Speaker 03:
Well, maybe so, but didn't the board conclude that there was no evidence of a disability resulting from the head injury?

[00:06:58] Speaker 04:
And they did so incorrectly by not applying the correct legal standard for consideration of a pro se appellant's claim, in this case a claim or request for revision based upon a clear and unmistakable error.

[00:07:13] Speaker 04:
We're talking about a profoundly disabled veteran who makes a claim in 1967 and the VA does not look at the records in a sympathetic way to raise every possible claim.

[00:07:27] Speaker 04:
And this was clearly a possible claim that was proved to be in existence later in the 2000s when the original grant was made for service connection for TBI.

[00:07:39] Speaker 04:
Part of this goes to the whole nature of the head injury, which we now understand at a much more sophisticated level and describe it as a traumatic brain injury.

[00:07:50] Speaker 04:
But that was not the situation when he made his second claim and they denied that second claim.

[00:07:56] Speaker 04:
It clearly

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That claim should not have been denied.

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And when it was reconsidered, they granted it.

[00:08:02] Speaker 04:
That exact same process should have taken place under this court's standard for the sympathetic reading of a pro se claimant's claim for even clear and unmistakable error.

[00:08:15] Speaker 00:
I want to ask you about your 3.156C argument.

[00:08:19] Speaker 00:
First off, did you make that argument in the opening brief?

[00:08:22] Speaker 04:
Oh, no, Your Honor.

[00:08:22] Speaker 04:
I'm sorry.

[00:08:23] Speaker 04:
I was only making parenthetical reference

[00:08:25] Speaker 04:
to what happened in between these times.

[00:08:28] Speaker 04:
So is that not an issue in this case?

[00:08:31] Speaker 04:
The 3.156C was an intervening determination which the VA granted an earlier effective date from, I believe it was 2004, back to 1991.

[00:08:42] Speaker 00:
So we don't need to consider that.

[00:08:44] Speaker 04:
No, no.

[00:08:45] Speaker 04:
I'm sorry.

[00:08:45] Speaker 04:
I didn't mean to mislead with that, but simply to put the entirety of this process in context.

[00:08:52] Speaker 04:
This is not a situation in which

[00:08:54] Speaker 04:
a skilled lawyer was bringing a request for revision in this 2013 board decision.

[00:09:01] Speaker 04:
This was a totally disabled veteran that the VA recognizes was disabled from this head injury.

[00:09:09] Speaker 04:
I stand close to the end of my time.

[00:09:11] Speaker 04:
I'll reserve the balance unless there's further questions from the panel.

[00:09:13] Speaker 01:
We will save it for you, Mr. Carpenter.

[00:09:16] Speaker 01:
Mr. Valiker.

[00:09:18] Speaker 02:
Good morning.

[00:09:18] Speaker 02:
Brett Valiker on behalf of the United States, and may it please the court.

[00:09:21] Speaker 02:
In this appeal, Mr. Bragg, at bottom, is asking this court to reinterpret the contents of his 1967 claim to find benefits that his claim was seeking benefits for brain injury.

[00:09:33] Speaker 02:
However, the law and the facts stand as insurmountable hurdles in Mr. Bragg's way.

[00:09:37] Speaker 02:
As this court made clear in Ellington versus Peek, the interpretation of the contents of a claim are beyond this court's jurisdiction because they are factual issues.

[00:09:45] Speaker 02:
And second, even if this court did have jurisdiction to determine the scope of his claim for benefits,

[00:09:50] Speaker 02:
That claim, including any medical documentation referenced therein or existing at the time, simply did not identify a brain injury and did not reflect an intent to seek benefits related to a brain injury.

[00:10:03] Speaker 03:
So if we read the 1967 thing as claiming a head injury, as apparently the board did, why isn't that a sufficient

[00:10:15] Speaker 03:
allegation of a disability.

[00:10:19] Speaker 03:
The board seemed to say I have to go further than that and say what the consequences of the head injury are?

[00:10:25] Speaker 02:
Yes, Your Honor, I believe it does.

[00:10:26] Speaker 02:
So it is clear that he suffered injuries to various parts of his face and his head.

[00:10:31] Speaker 02:
But there's no indication that these injuries extended to his brain.

[00:10:35] Speaker 02:
And there's no evidence in the record that Mr. Bragg was suffering from a brain injury in 1967.

[00:10:40] Speaker 02:
And there is that one medical... Brain injury, that would have been sufficient?

[00:10:44] Speaker 02:
but head injury isn't?

[00:10:47] Speaker 02:
Yes, Your Honor.

[00:10:48] Speaker 02:
So there is that one medical document that references... That's a pretty fine line.

[00:10:54] Speaker 02:
Well, Your Honor, so the veteran has an obligation to present at least their intent to claim benefits for certain injuries.

[00:11:03] Speaker 02:
And one can suffer lacerations, for example, of the face, and that's on the head, but it would not necessarily extend to damage of the brain.

[00:11:11] Speaker 02:
uh... and so you know that that's my uh... uh... colleagues what's the difference between say i suffered a head injury and i suffered a brain injury difference i believe that there is your honor uh... it's uh... suffered a brain injury that you say that would be okay yes in fact that's what the the veteran did in nineteen ninety one uh... when it when he said i'm filing a claim for benefits for organic brain syndrome which the board in twenty thirteen uh... you know

[00:11:39] Speaker 02:
made the reasonable and logical inference that this is effectively the same thing as TBI, a traumatic brain injury.

[00:11:47] Speaker 00:
What about the secretary's obligation to do a sympathetic reading of the entire record on behalf of the veteran?

[00:11:54] Speaker 02:
The secretary certainly has that obligation.

[00:11:57] Speaker 02:
And that was what the board did here in 2013.

[00:12:02] Speaker 02:
The question before this court... And what about earlier?

[00:12:06] Speaker 00:
what about in nineteen sixty seven uh... you have that obligation as well back then didn't you that's correct in so drawing this fine line between head injury and brain injuries that complying with the duty to have a pro-veteran sympathetic reading of the record so uh... it it is uh... because in

[00:12:27] Speaker 02:
Murphy versus Wilkie, this court made clear that the veteran, in a kind of Murphy, Shea, and Sellers, the constellation of cases that govern this, the secretary should be looking at medical records that are referenced in the claim to try to discern the intent of the veteran and to see what the veteran's trying to identify as the disabling condition for which he or she seeks benefits.

[00:12:50] Speaker 02:
However, that does not extend to a fishing expedition where the secretary has to then

[00:12:56] Speaker 02:
look at the entirety of the medical records and try to discern what the veteran is actually seeking.

[00:13:02] Speaker 02:
And so there is that distinction there.

[00:13:04] Speaker 01:
In fact, the sellers... You mentioned Q. And how does this distinction between head and brain injury fit into the Q context?

[00:13:15] Speaker 02:
So the Q context requires a clear and unmistakable error, which is to say a specific error that is undebatable and would have manifestly changed the outcome of this case.

[00:13:26] Speaker 02:
And so that means that to the extent there is a factual question, which again, under Ellington versus Peak, this court does not have jurisdiction to consider the scope of the claim, that the board, when it was considering that question in 2019, was only considering it for clear and unmistakable error.

[00:13:46] Speaker 02:
So the board in 2019, to the extent it considered that factual question, would have had to determine that the 2013 board

[00:13:56] Speaker 02:
was so wrong that it was beyond debate and that it was so wrong that that error would have manifestly changed the outcome of the appeal.

[00:14:07] Speaker 03:
So the board decision that found that the 67 claim described a head injury is the 2019 board decision, right?

[00:14:18] Speaker 02:
I'm sorry.

[00:14:18] Speaker 03:
Could you repeat that?

[00:14:19] Speaker 03:
The board decision that said

[00:14:21] Speaker 03:
that the 1967 claim described a hit injury is the 2019 board decision?

[00:14:29] Speaker 03:
Your Honor, that would be the 2013 board decision.

[00:14:32] Speaker 03:
So could you show me the page where they discussed that?

[00:14:37] Speaker 02:
Yes.

[00:14:39] Speaker 02:
So we're looking around appendix 220 in the 220s.

[00:14:44] Speaker 02:
The 2013 opinion starts at 222.

[00:14:52] Speaker 02:
and it starts on 224 where they go through the findings of fact and this is when the veteran presented in 2008 essentially the 3.156 argument for an earlier effective date based on medical records that were not considered and so the board in 2013 did exactly what it was supposed to do which is what I'm asking is to show me

[00:15:21] Speaker 03:
The Veterans Court said that the board found that the 67 claim described a head injury.

[00:15:29] Speaker 03:
I'm just asking where the board said that.

[00:15:35] Speaker 02:
Well, so what the board said is that, and this on 229, it says, quote, a review of the veteran's claim files contains no written communication, either formal or informal, before November 7, 1991, reflecting an intent to file a service connection claim for TBI, parentheses, or organic brain syndrome.

[00:15:56] Speaker 03:
OK, but you're not pointing me to what I'm asking about.

[00:16:00] Speaker 03:
Where do they recognize that it described a head injury?

[00:16:05] Speaker 02:
So also on 229, when the court is examining the record, this is the second paragraph.

[00:16:12] Speaker 02:
It does mention that he was injured in the motor vehicle accident.

[00:16:15] Speaker 02:
It mentions his period of unconsciousness.

[00:16:18] Speaker 02:
But then it says, quote, there is no specific assessment for a head injury.

[00:16:21] Speaker 03:
You're not helping me.

[00:16:23] Speaker 03:
On A5, this is the veteran's court decision.

[00:16:28] Speaker 03:
It says the board assessed the medical board report in order to imply that the appellant had injured his head.

[00:16:34] Speaker 03:
OK, where does the board say that?

[00:16:38] Speaker 02:
So that would be the sentence after the one I was referring to, which is on 229.

[00:16:44] Speaker 02:
The veteran incurred multiple injuries, including left-right mandibular fractures, a fracture of the left zygoma, and fracture of the right humerus.

[00:16:52] Speaker 02:
And so it does mention that there's no specific assessment for a head injury other than the x-rays that have been taken.

[00:17:02] Speaker 03:
Where is that saying he suffered a head injury?

[00:17:04] Speaker 02:
On the second paragraph on 229.

[00:17:06] Speaker 02:
The veteran was formally diagnosed.

[00:17:12] Speaker 02:
That's 1991.

[00:17:15] Speaker 02:
The paragraph starts with the evidence of the record reflects.

[00:17:18] Speaker 00:
You're referring to the mandibular fractures and the left zygoma fracture and right humerus.

[00:17:25] Speaker 00:
Are those all components of the head?

[00:17:27] Speaker 02:
Yes.

[00:17:28] Speaker 02:
Yes.

[00:17:29] Speaker 02:
I'm not a doctor, but I believe that the mandibular fracture is about the jaw and zygoma, I believe, is part of the ocular socket.

[00:17:39] Speaker 02:
There is the

[00:17:41] Speaker 02:
injuries to the face and the head to be clear.

[00:17:44] Speaker 02:
And there's one medical document, as my colleague has pointed out and relied on, that he was unconscious following his truck accident.

[00:17:52] Speaker 02:
But the same medical records, if we look at appendix 23 through 26, they contain no discussion of any resulting brain condition.

[00:18:01] Speaker 02:
And in fact, the document, the same medical document concludes, quote,

[00:18:05] Speaker 02:
At the present time, the patient is stable and doing well in all parameters, except that his diplopia binocular persists in all fields of gaze."

[00:18:14] Speaker 02:
And that's at page 26.

[00:18:15] Speaker 02:
So that's what was before the VA as of 1967.

[00:18:20] Speaker 02:
And as this court has made clear in Sellers and then even more clear, I believe, in Samson case that we cite in our briefs,

[00:18:31] Speaker 02:
Both an intent to apply for benefits and an indication of the benefits sought are required for a formal or informal claim.

[00:18:39] Speaker 02:
There's not a distinction there when it comes to those requirements.

[00:18:42] Speaker 02:
So currently, Mr. Bragg has a 1991 effective date for his brain injury.

[00:18:47] Speaker 02:
And that makes sense, because the record shows that 1991 is the year that first reflects he was diagnosed with a brain injury.

[00:18:54] Speaker 02:
And that's at appendix 42 through 46.

[00:18:56] Speaker 02:
And 1991 is also the year that Mr. Bragg first filed identifying a traumatic brain injury, which was then called an organic brain syndrome.

[00:19:03] Speaker 02:
And that's at appendix 47.

[00:19:06] Speaker 02:
And so here, the Board of Veterans Appeals assigned him a 1991 effective date after it did exactly what it was supposed to do.

[00:19:14] Speaker 02:
It scoured Mr. Bragg's records, found medical records that determined should have been considered by the rating official in 1992.

[00:19:20] Speaker 02:
And based on those records, the board decided that Mr. Bragg's claim for brain injury had to be reconsidered under 38 CFR 3.156C.

[00:19:29] Speaker 02:
So then the board, based on that, assigned him a 1991 effective date.

[00:19:33] Speaker 02:
Um, Mr. Bragg did not appeal that decision, uh, instead filed the notice of disagreement four years later, which the board liberally construed as a Q motion.

[00:19:42] Speaker 02:
Uh, in that, in that motion, he saw it in 1967 effective date.

[00:19:46] Speaker 02:
Um, so then the board determined that there was no clear and unmistakable error.

[00:19:51] Speaker 02:
Uh, and then in 2021, the veterans court affirmed.

[00:19:53] Speaker 02:
And of course that's how we're all here today.

[00:19:56] Speaker 00:
I understand Mr. Carpenter, he's arguing principally that the veterans court did not

[00:20:03] Speaker 00:
truly apply the seller's standard for determining when the claimant intended to file benefit for brain injury.

[00:20:12] Speaker 00:
Do you understand that to be the issue?

[00:20:16] Speaker 00:
And if so, what's your response?

[00:20:18] Speaker 02:
I understand that that's what my colleagues stated, but I don't understand it, frankly.

[00:20:24] Speaker 02:
I think that sellers, as clarified by Samson, made very clear that you do need that intent.

[00:20:30] Speaker 02:
to file for those benefits.

[00:20:32] Speaker 00:
And how do we know, in your view, that the Veterans Court applied that standard?

[00:20:39] Speaker 02:
Because the Veterans Court walked through its analysis of the 2019 board decision and pointed out exactly what the 2019 board decision did, which is the four things I just mentioned, by scouring the records, finding records that should have been considered at the time, reconsidering

[00:21:00] Speaker 02:
No, what the 2013 board did in reconsidering those records and assigning the 1991 effective date.

[00:21:06] Speaker 02:
And then the 2019 board, of course, looked only for Q error and didn't find any, even though it did note that there could potentially be a disagreement about whether a head injury, as your honor stated, a head injury could be a brain injury, but that's a factual determination.

[00:21:28] Speaker 02:
So it's not before this court.

[00:21:29] Speaker 02:
And it actually wasn't even before the 2019 board because it would not be undebatable.

[00:21:35] Speaker 02:
That would be, at most, subject to debate.

[00:21:39] Speaker 02:
So the procedural posture here, in addition to the jurisdiction, are hurdles in addition to the actual facts of what was before the board in 1967.

[00:21:50] Speaker 02:
So I do want to just quickly touch upon Mr. Bragg's argument

[00:22:00] Speaker 02:
that the claim must be read to include the brain injury.

[00:22:04] Speaker 02:
In the opening brief, it was because of the VA's duty to, quote, develop all potential claims raised by the evidence.

[00:22:12] Speaker 02:
That's at the brief at 16.

[00:22:14] Speaker 02:
But in Sellers, this court roundly rejected the notion that a formal claim for one condition would impose a duty on the VA to, quote, search the veteran's record to identify and fully develop any additional claim the record may support.

[00:22:26] Speaker 02:
And that was Sellers at 1337.

[00:22:29] Speaker 02:
And then the Seller's Court further clarified that, quote, relevant statutes, regulations, and judicial precedent require that a veteran's legally sufficient claim provide information, even at a high level of generality, to identify the sickness, disease, or injury to which benefits are sought.

[00:22:46] Speaker 03:
So suppose he had said in 1967, I want compensation for a head injury.

[00:22:50] Speaker 03:
That would not have been sufficient.

[00:22:54] Speaker 02:
I still think that that is, I mean, it's debatable.

[00:22:58] Speaker 02:
Perhaps in the first instance, if this were maybe, if we were in the board on a direct appeal of a rating decision, that might be debatable.

[00:23:07] Speaker 02:
But in this procedural posture, a debatable error is not enough, especially a factual question like that when you're interpreting the scope of a claim, which would be beyond jurisdiction under Ellington versus Peak in any case.

[00:23:24] Speaker 02:
And I did want to also quickly, actually I only have 11 seconds, so if there are no further questions.

[00:23:35] Speaker 01:
Well, if you want to make one quick point, you may.

[00:23:37] Speaker 02:
OK, thank you, Your Honor.

[00:23:40] Speaker 02:
The 3.156 C argument was not raised in Mr. Bragg's opening in the Q motion to the board.

[00:23:49] Speaker 02:
So to the extent

[00:23:52] Speaker 02:
Mr. Bragg's argument is that the Veterans Court needed to have considered 3.156C, which again was not in his opening brief.

[00:24:00] Speaker 02:
In this case, that it would actually be legal error for the Veterans Court to have considered it under Andre versus Principi, because it was not something in his cue motion.

[00:24:13] Speaker 02:
And of course, the Veterans Court did not address that, Sue Sponte.

[00:24:19] Speaker 01:
Thank you, counsel.

[00:24:20] Speaker 01:
Mr. Coppenter has some time left.

[00:24:23] Speaker 04:
Our first point that we made in our opening brief was the obligation, self-imposed by the secretary, that it's the obligation of the VA to develop evidence to substantiate every claim, every benefit that is available under law.

[00:24:39] Speaker 04:
That didn't happen in 1967.

[00:24:41] Speaker 04:
They narrowed the scope of the claim by only considering those things that were clearly articulated.

[00:24:49] Speaker 04:
Now, in the totality of this case,

[00:24:53] Speaker 04:
as discussed by both counsel, the government has recognized that there was an error made by the VA in the 1967 case to not get all of the service records.

[00:25:07] Speaker 04:
So they didn't have all of the service records at the time in which they adjudicated the original claim, which is why... They didn't have an obligation to get the service records if it was a claim, right?

[00:25:18] Speaker 04:
That's correct, Your Honor.

[00:25:20] Speaker 04:
And the claim was

[00:25:21] Speaker 04:
for the resulting injuries from the explosion that he was injured in while in service.

[00:25:29] Speaker 04:
And part of that evidence included his being unconscious for 32 hours.

[00:25:35] Speaker 04:
The question then becomes, is it the intent of Congress that the VA assist in the first instance by looking at the totality of

[00:25:48] Speaker 04:
the evidence that's available.

[00:25:49] Speaker 03:
It seems to me you're looking at the 1967 decision through the lens of the laws that's developed since then, which, as I understand Q, is not what you're supposed to do.

[00:26:04] Speaker 04:
That is not my intent, Your Honor.

[00:26:05] Speaker 04:
My intent is to demonstrate that this information, had it been properly developed in 1967, at the time of the original rating decision,

[00:26:18] Speaker 04:
then these military records and the attendant medical records showing the head injury in service rendering him unconscious would have reasonably raised.

[00:26:31] Speaker 04:
And that's how this should have been examined rather than through the narrower lens of was there an expression of intent.

[00:26:40] Speaker 04:
By narrowing it using the expression of intent, you overlook

[00:26:45] Speaker 04:
the secretary's overall overarching obligation to assist the veteran in developing the case.

[00:26:53] Speaker 04:
They didn't get all of the military records, they didn't get all of the medical records, and as a result, they didn't look at the head injury.

[00:27:02] Speaker 04:
The Veterans Court should have looked at it through that lens because one, this was a

[00:27:10] Speaker 04:
Cue claim filed by a pro se veteran and should have been read more broadly and more sympathetically.

[00:27:16] Speaker 04:
And two, they should have looked at it from the point of view of whether or not the evidence was reasonably raised by the evidence of record.

[00:27:26] Speaker 04:
The evidence of record is not, in fact, what was in the record in 1967, but what should have been in the record based upon the secretary's obligation by statute

[00:27:40] Speaker 04:
and by regulation to assist the veteran in substantiating a reasonably raised claim from an obvious head injury during service.

[00:27:49] Speaker 04:
Let's search for other questions from the panel.

[00:27:51] Speaker 01:
Thank you, Mr. Carpenter.

[00:27:52] Speaker 01:
The case is submitted.

[00:27:53] Speaker 04:
Thank you.