[00:00:00] Speaker 03:
Fourth and last argument for today, the court will hear is docket number 22-1610, Forsyth v. McDonough.

[00:00:13] Speaker 00:
Good morning, Your Honors.

[00:00:14] Speaker 00:
My name is Fallon Marie Lappenzina, and I represent the veteran David Forsyth.

[00:00:20] Speaker 00:
May I please the court please?

[00:00:23] Speaker 00:
Your Honors, appellant has advanced four arguments to this court, and I'll go through each of them today.

[00:00:31] Speaker 00:
At the Veterans Court, Mr. Forsyth argued that the VA failed to comport with the temporal requirements that have been imposed by 5103A1 and 3159B1 when issuing notice to the Veteran.

[00:00:45] Speaker 00:
The Veterans Court in this case found that the notice comported with the law and cited to Wilson.

[00:00:51] Speaker 00:
and then also opine that the veteran's certified receiving the notice.

[00:00:56] Speaker 00:
However, this is not in accordance with 5103 and 3159.

[00:01:01] Speaker 00:
Moreover, the Veterans Court has misinterpreted the statutory language, which clearly demonstrates the imposition of a temporal condition.

[00:01:10] Speaker 04:
And instead of about the old statute or the new statute?

[00:01:14] Speaker 00:
Your Honor, the new statute is very specific

[00:01:18] Speaker 00:
in that 5103A1 says, the VA must issue notice to the veteran of evidence necessary to substantiate the claim that was not previously provided to the secretary.

[00:01:30] Speaker 04:
This is corroborated by the enacting regulation, 3159B1, which says... Well, the enacting regulation goes to the old statute that had a different timing requirement.

[00:01:40] Speaker 00:
Right.

[00:01:41] Speaker 00:
But the statute still contains...

[00:01:44] Speaker 04:
this stuff about any evidence not already provided to the secretary means that all the notice has to come after stuff is provided to the secretary because these veterans have all the secretary already has tons of information

[00:02:00] Speaker 04:
before a claim is submitted most of the time.

[00:02:02] Speaker 04:
These veterans have gone to VA hospitals.

[00:02:04] Speaker 04:
There are medical reports.

[00:02:06] Speaker 04:
There are all kinds of service records.

[00:02:08] Speaker 04:
That's what this means.

[00:02:09] Speaker 04:
I mean, the legislative history for the new statute makes clear that it was getting rid of a temporal requirement, doesn't it?

[00:02:17] Speaker 00:
The legislative intent does say that.

[00:02:20] Speaker 00:
However, the plain language of the statute, which is what governs, still has the effect

[00:02:26] Speaker 00:
of saying that there is going to be a review of the information submitted and that there's going to be an analysis of that and then the VA is then going to provide notice to the veteran of what is still needed to substantiate the claim.

[00:02:39] Speaker 04:
Are you suggesting that what this requires is that the VA gets specific evidence and looks at it and then says to the veteran, oh, you failed on this prong, you failed on this prong, give us this evidence?

[00:02:54] Speaker 00:
No, that's not what I'm suggesting.

[00:02:56] Speaker 04:
Right, that's inconsistent with Wilson.

[00:02:58] Speaker 00:
Actually, what Wilson says is that the notice must identify the information and evidence necessary to substantiate

[00:03:06] Speaker 00:
the particular type of claim being asserted by the veteran.

[00:03:10] Speaker 00:
And such a notice is required to be issued after the initial claim for benefits.

[00:03:15] Speaker 04:
The Wilson case... Well, that portion of Wilson has been superseded by the statute, right?

[00:03:20] Speaker 00:
But the statute still says that the VA will provide notice of what's needed to substantiate the claim that has not previously been provided by the veteran to the VA.

[00:03:28] Speaker 00:
Sure, the VA may have some of the veteran's STR.

[00:03:31] Speaker 04:
Do they have all of those private... Wasn't the notice he was given say that?

[00:03:34] Speaker 04:
I mean, doesn't the notice he was given say that?

[00:03:37] Speaker 04:
It doesn't describe exactly what the veteran has to give that hasn't already been provided to the VA.

[00:03:46] Speaker 00:
No.

[00:03:46] Speaker 00:
How can the VA provide additional information if they've only submitted certain items and then the VA is not reviewing it to determine what else is needed to substantiate the claim?

[00:03:58] Speaker 04:
But that sounds like you're asking for a case file review and an individualized notice.

[00:04:03] Speaker 00:
No.

[00:04:03] Speaker 00:
What I'm asking for is what the statute says, which is that the VA has to provide notice about evidence that has not already been previously provided to them.

[00:04:12] Speaker 04:
But the notice here describes in detail what the veteran has to give.

[00:04:18] Speaker 04:
And so the veteran knows what he has to give or she has to give that hasn't already been provided.

[00:04:26] Speaker 00:
I think that this sounds like,

[00:04:30] Speaker 00:
a rationalization of what, I mean that's exactly what the veteran supports.

[00:04:34] Speaker 04:
I think it's perfectly clear that the VA understands that these veterans engage in an ongoing, you know, part of the VA system and the VA already has tons of information and it's not going to require the veteran to resubmit medical examinations and all the stuff they already have.

[00:04:53] Speaker 00:
Respectfully, I'd really like an opportunity to respond to that.

[00:04:57] Speaker 00:
I have been doing this for seven years.

[00:04:59] Speaker 00:
I've represented hundreds of veterans.

[00:05:01] Speaker 00:
That's not a long time, maybe, in other people's cases, but I've seen a lot of this.

[00:05:05] Speaker 00:
There are tons of records.

[00:05:06] Speaker 00:
The VA will have been prosecuted.

[00:05:10] Speaker 00:
Can I please?

[00:05:10] Speaker 04:
No, no, no.

[00:05:11] Speaker 04:
We get asked the questions.

[00:05:13] Speaker 04:
Describe to me what you think this notice should look like.

[00:05:17] Speaker 00:
What I'm trying to say to you is that there are tons of records the VA does not possess that are private records, that are buddy statements.

[00:05:25] Speaker 00:
In addition, the VA doesn't even have its own military records a lot of the time, and we have to press on them to request things from the archives.

[00:05:32] Speaker 00:
They don't always have the records.

[00:05:35] Speaker 00:
In this particular case, the veteran submitted one medical nexus opinion and his DD-214.

[00:05:41] Speaker 00:
He did not receive notice of what was needed to substantiate his claim, and now the VA developed a negative medical opinion against it, and that was all they had to decide his claim.

[00:05:51] Speaker 04:
So if this process worked like you think it

[00:05:55] Speaker 04:
your description of it.

[00:05:57] Speaker 04:
What would the notice have said to the veteran in your case?

[00:06:00] Speaker 00:
What I'm saying is that the notice is required to be issued after the VA... What would it have said in your particular... It would have advised the veteran of what is still needed to substantiate the claim.

[00:06:12] Speaker 00:
after what's already been provided.

[00:06:15] Speaker 00:
It's the same effect that was in place before the 2012 amendment.

[00:06:19] Speaker 04:
You're not being specific enough.

[00:06:21] Speaker 00:
What in this case would it... It would have advised him of additional evidence necessary to substantiate his claim that was not previously provided to the VA by him.

[00:06:31] Speaker 03:
Can you identify a couple examples of evidence that the notice would have told Mr. Forsyth he needed to come forward with?

[00:06:40] Speaker 00:
Absolutely.

[00:06:40] Speaker 00:
Your Honor, you're in receipt of the appendix from my reply brief, which shows you a sample VCA letter, which is on Appendix or Exhibit A of my reply.

[00:06:51] Speaker 00:
This is what went out prior to the 2012 Amendment.

[00:06:56] Speaker 03:
I just want to know.

[00:06:58] Speaker 00:
OK, so in this particular case, Mr. Forsythe.

[00:07:00] Speaker 03:
Judge Hughes is trying to explore with you what was it that Mr. Forsythe should have gotten.

[00:07:07] Speaker 03:
When you say it should have provided, the VA should have provided notice of the evidence that's needed.

[00:07:12] Speaker 03:
What evidence, can you specify that evidence?

[00:07:17] Speaker 03:
What is that evidence?

[00:07:19] Speaker 00:
OK, as I argued in my reply brief,

[00:07:22] Speaker 00:
Mr. Forsythe did not receive the notice, and so he only submitted a medical nexus opinion in his DD-214.

[00:07:29] Speaker 00:
Had he known that he could submit additional documents and had the VA received and reviewed his application and advised him of what was still needed, they would have let him know about statements.

[00:07:37] Speaker 00:
What was still needed?

[00:07:39] Speaker 00:
Buddy's statements, lay statements from the veteran.

[00:07:41] Speaker 00:
regarding his chiropractor treatment records, his primary care physician, all not military related.

[00:07:47] Speaker 00:
These are private records.

[00:07:49] Speaker 04:
Are those types of evidence not included in the original notice he got?

[00:07:55] Speaker 00:
Mr. Forsythe never received notice.

[00:07:58] Speaker 04:
He signed a claim form that had a notice attached to it.

[00:08:01] Speaker 00:
No, he signed his application for disability benefits in order to initiate a claim for benefits.

[00:08:06] Speaker 00:
That's what he signed.

[00:08:07] Speaker 03:
Let's assume for the moment that he got the notice

[00:08:11] Speaker 03:
the standard notice that the VA has on all application forms.

[00:08:19] Speaker 03:
I'm trying to understand, even if you prefer that Mr. Forsythe received a second notice after he had filed the claim, how was he harmed when

[00:08:32] Speaker 03:
He already got the notice of the specific pieces of evidence that a claimant needs to have in order to substantiate a claim.

[00:08:42] Speaker 00:
He did not receive the benefit of his application and documents being reviewed to determine what is still missing and what has not been provided to the secretary that can still be used.

[00:08:52] Speaker 00:
It's outcome-determinative evidence that's probative and missing from his claim that the VA never considered, and therefore they denied his claim.

[00:09:02] Speaker 00:
We're talking about 20 years worth of private treatment records that, had he known he could have submit those, he would have, and that would have made a service connection difference.

[00:09:10] Speaker 04:
Let's, again, assume he received the generalized notice, which maybe he didn't read it.

[00:09:17] Speaker 00:
But I'm telling you that the veteran has not.

[00:09:20] Speaker 00:
The veteran told me he had a question.

[00:09:21] Speaker 03:
Assume for the purposes of Judge Hughes' question.

[00:09:24] Speaker 04:
The record shows that he signed a claim form which indicates he received the generalized notice.

[00:09:29] Speaker 04:
whether that factually is true or not, we can't touch.

[00:09:32] Speaker 04:
So we're assuming he received that generalized notice.

[00:09:35] Speaker 04:
Is there categories of evidence in that document that you think he wasn't told he could provide?

[00:09:43] Speaker 04:
Or is what you're asking is, he got this generalized notice that said, here's all the different kinds of evidence you can provide,

[00:09:50] Speaker 04:
he provided evidence, the VA then has to look at it and say, oh, well, you should provide X, Y, and Z because on these specific issues, you have improved your claim.

[00:10:01] Speaker 04:
Is that what you're saying?

[00:10:03] Speaker 00:
No.

[00:10:04] Speaker 00:
It's far more simple than that.

[00:10:07] Speaker 00:
Prior to the 2012 Amendment, the VA was required to give notice of what was missing.

[00:10:12] Speaker 00:
That's all that there is.

[00:10:13] Speaker 04:
Not on an individualized basis.

[00:10:15] Speaker 00:
Yes, it was.

[00:10:17] Speaker 00:
In fact, excuse me, Your Honor.

[00:10:19] Speaker 04:
Wasn't Wilson a pretty amendment?

[00:10:21] Speaker 00:
Wilson Mayfield Court, this court held.

[00:10:24] Speaker 04:
Wilson says you don't have to give individualized notice.

[00:10:28] Speaker 00:
That's talking about the specificity of the notice, but Wilson, I just read Wilson to you and it specifically says that... Okay, this is not a useful argument.

[00:10:37] Speaker 04:
Let's assume we disagree with you.

[00:10:39] Speaker 00:
Okay.

[00:10:39] Speaker 04:
That you don't have to have a VA official read the case and say, these specific pieces of evidence are missing.

[00:10:49] Speaker 04:
What are you talking about in terms of the notice?

[00:10:54] Speaker 00:
Well, I've made multiple arguments about the notice.

[00:10:57] Speaker 00:
it needs to go out after the application is submitted pursuant to the language in 5103 and 3159.

[00:11:03] Speaker 04:
Let's assume that the amended statute suggests you're wrong on that point.

[00:11:10] Speaker 00:
Okay.

[00:11:10] Speaker 00:
The notice is also unconstitutional and violates due process.

[00:11:14] Speaker 00:
Even this court has typeface requirements.

[00:11:16] Speaker 00:
It's 14-point and I believe double-spaced

[00:11:18] Speaker 00:
This is a margin-to-margin, seven-page, 9.5 document that you're asking 80-year-old veterans with visual impairments and cognitive disabilities to read, understand, digest, and then figure out what exactly they need to do.

[00:11:32] Speaker 00:
It's the complicated maze of this, this, if this, then that scenario that even as an attorney, we sometimes have to slog through.

[00:11:40] Speaker 00:
It's not tailored to fit the needs of the people that are trying to go through this process.

[00:11:46] Speaker 00:
So the arguments that I made are also constitutional in nature and that the notice is deficient.

[00:11:51] Speaker 04:
So your argument comes down to the argument that generalized notice is insufficient.

[00:11:56] Speaker 00:
No, not generalized notice.

[00:11:58] Speaker 00:
I'm saying that the implementation of the specific notice is not tailored to the people that it's trying to assist.

[00:12:08] Speaker 00:
That's what I'm saying.

[00:12:10] Speaker 02:
Let me ask you a question before you run out of time.

[00:12:13] Speaker 02:
I know they're not before us, but there were three or four other claims that were set back that looked exactly like this one.

[00:12:22] Speaker 02:
How is it that this one got to be resided the way it was instead of being set back like the others were for more information?

[00:12:33] Speaker 00:
I didn't represent the veteran on those claims, so I do not know.

[00:12:38] Speaker 02:
I know that, but they're in the record.

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

[00:12:43] Speaker 00:
The veteran was pro se at that point before the VA, and they may have gotten remanded.

[00:12:47] Speaker 02:
They were.

[00:12:48] Speaker 00:
OK, so they may have gotten remanded.

[00:12:50] Speaker 02:
It worked exactly like this.

[00:12:53] Speaker 02:
But since you don't know, it's messed up.

[00:12:55] Speaker 00:
I apologize, Your Honor.

[00:12:57] Speaker 00:
I'm not sure what the disposition of those claims were.

[00:12:59] Speaker 00:
This case came to me through the Veterans Consortium, who I work closely with.

[00:13:03] Speaker 02:
Well, this one must be the same doctor who gave a preemptory.

[00:13:08] Speaker 02:
His doctor just said, it must have been the doctors.

[00:13:12] Speaker 02:
And he said the same thing for all the claims.

[00:13:15] Speaker 02:
And four or five of them went back.

[00:13:17] Speaker 02:
Three or four or five, I can't remember the number, for further development.

[00:13:22] Speaker 02:
and this one is here.

[00:13:24] Speaker 00:
It must have been something that the doctor said in the opinion to spark the VA to further develop the claim, to send it back for further development.

[00:13:32] Speaker 03:
So we don't know?

[00:13:33] Speaker 00:
Yeah.

[00:13:33] Speaker 03:
That's okay.

[00:13:35] Speaker 03:
You're pretty deep in your rebuttal.

[00:13:37] Speaker 03:
Would you like to preserve your time?

[00:13:38] Speaker 03:
I'll preserve my remaining time.

[00:13:41] Speaker 03:
Okay, thank you.

[00:13:43] Speaker 01:
Good morning.

[00:13:44] Speaker 01:
May it please the court?

[00:13:49] Speaker 04:
Can I just ask you a question to start that's not directly... Why hasn't the VA revoked this regulation yet?

[00:13:56] Speaker 04:
I know it's suggested that anything that's inconsistent with the new notice requirements it reads as not being relevant anymore and it says it in general, but it would sure be a lot cleaner if this regulation wasn't on the books.

[00:14:10] Speaker 04:
Do you know of any steps they're taking to revoke it?

[00:14:14] Speaker 01:
I don't, Your Honor.

[00:14:15] Speaker 01:
I certainly agree that it would be much cleaner if it had been

[00:14:18] Speaker 01:
amended and candidly I think it appears to be an oversight if anything as far as I know there's still a valid regulation oversight or not.

[00:14:31] Speaker 01:
It is your honor.

[00:14:33] Speaker 02:
And we presume that the VA intended it to remain a valid regulation.

[00:14:40] Speaker 01:
Yes your honor although I think it's fairly clear the VA did not intend the

[00:14:45] Speaker 01:
the temporal aspect to remain the same in the proposed rulemaking.

[00:14:51] Speaker 01:
It does, Your Honor, and again, I candidly... Do you think that part is still valid?

[00:14:57] Speaker 01:
Which part, Your Honor?

[00:14:57] Speaker 04:
The temporal part.

[00:15:01] Speaker 04:
To the extent that it is inconsistent with the 2012 amendment... I mean, isn't part of the main purpose of that amendment, at least with this part of the statute, is to get rid of that temporal requirement?

[00:15:13] Speaker 02:
It is, Your Honor, and I think it is possible that... Well, that's what the Relation of Slave History said, but that's not what the statute says.

[00:15:22] Speaker 02:
Well, respectfully, Your Honor... This is not inconsistent with the statute, as read, if you read the statute together with the regulation.

[00:15:28] Speaker 01:
Respectfully, honor, I believe it is inconsistent given that the nature of the amendment to the statute was explicitly to excise that temporal language.

[00:15:41] Speaker 02:
It doesn't make, but it doesn't mean that the VA can't do it.

[00:15:46] Speaker 02:
If they didn't say you can't do it, so VA is doing it.

[00:15:49] Speaker 02:
They made a conscious decision, we must presume.

[00:15:52] Speaker 01:
Your Honor, the statute authorizes the VA to provide regulations with respect to the content of the notice.

[00:16:00] Speaker 03:
The statute does not explicitly permit VA to regulate with respect to the timing that was explained by... But does the statute on its face preclude the VA from writing a rule that provides that the VA will give notice after a claim has been filed?

[00:16:22] Speaker 01:
On its face, Your Honor, no.

[00:16:27] Speaker 03:
So when we're just looking at the regulation on its face and comparing it to 5103A1 on its face, we cannot say that they conflict with each other.

[00:16:41] Speaker 01:
I think that is correct.

[00:16:43] Speaker 03:
It may conflict with the legislative history and the intent and purpose of the 2012 amendment.

[00:16:49] Speaker 03:
But in terms of text to text, we cannot say that they textually are incompatible with each other.

[00:16:58] Speaker 01:
I think that is correct, Your Honor.

[00:17:01] Speaker 01:
And with that acknowledgement, again, I think the VA made it clear that its intent was to follow congressional intent

[00:17:11] Speaker 01:
and that the regulation was not intended to go forward to limit it to providing notice only after... The VA didn't re-promulgate this regulation after the statute, right?

[00:17:22] Speaker 01:
No, Your Honor, it did not.

[00:17:23] Speaker 01:
The language from this regulation is a product of implementation of the original BCAA and the timing requirement that was still in the statute at that time.

[00:17:36] Speaker 02:
But it did look at it after the new statute came out and

[00:17:40] Speaker 02:
and then did nothing.

[00:17:42] Speaker 01:
It did, Your Honor.

[00:17:42] Speaker 02:
It indicated that they intended it to remain vital.

[00:17:49] Speaker 04:
Well, I thought it said in the regulatory history that to the extent there's any conflict between the prior rules and the current rules, the current rules apply.

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

[00:18:01] Speaker 01:
And the proposed rulemaking explicitly said that the VA understood

[00:18:07] Speaker 01:
the change in the statute to authorize the use of this notice format in the application form.

[00:18:15] Speaker 02:
But not to preclude the post-submission help assistance to the veteran.

[00:18:23] Speaker 01:
Well, I certainly think, Your Honor, nothing in the statute or the regulation even as intended would preclude the VA from providing additional assistance after the fact.

[00:18:33] Speaker 02:
And that's what he's asking for, isn't it?

[00:18:34] Speaker 01:
Well, no, Your Honor.

[00:18:35] Speaker 01:
I think that what he is asking for is much more than that.

[00:18:40] Speaker 01:
I think that the real question in this case is, even had Mr. Forsyth been provided this notice upon receipt of his application, it is unclear what difference that would have made, what the prejudice is here.

[00:18:56] Speaker 01:
Mr. Forsyth is effectively asking for a

[00:19:00] Speaker 01:
predecisional advisory opinion indicating, you know, we have reviewed your claim.

[00:19:06] Speaker 01:
Here are the things you would need to provide us in order for us to grant in your favor.

[00:19:10] Speaker 01:
And that is exactly what this court found not to be necessary in Wilson.

[00:19:17] Speaker 03:
In Wilson, is there a specific passage you can point us to where Wilson that we held that generic notice

[00:19:30] Speaker 03:
to be specifically tailored to the claimant's claim?

[00:19:35] Speaker 01:
Yes, Your Honor.

[00:19:40] Speaker 01:
Your Honor, I am looking at, this starts on 1059 and goes through 1060.

[00:19:47] Speaker 01:
It describes that, you know,

[00:19:52] Speaker 01:
I'll just read it.

[00:19:55] Speaker 01:
Flame of the notice must identify the information and evidence necessary to substantiate the particular type of claim being asserted by the veteran, which we refer to here as generic notice.

[00:20:04] Speaker 01:
But there is no indication that Congress intended to require an analysis of the individual claim in each case.

[00:20:11] Speaker 01:
Indeed, this court has already rejected the argument

[00:20:13] Speaker 01:
that Section 5103A requires the VA to, quote, identify with specificity the evidence necessary to substantiate the claim, unquote.

[00:20:20] Speaker 01:
And that's quoting paralyzed veterans of the 2003 case.

[00:20:27] Speaker 02:
That's not what he's asking for here.

[00:20:29] Speaker 02:
He would just like to know what is, they could send it back and say, well, you've only submitted a peremptory statement from your doctor.

[00:20:38] Speaker 02:
Is there anything else that you would like to offer to support your claim?

[00:20:42] Speaker 01:
And Your Honor, the notice explains that.

[00:20:45] Speaker 01:
The notice that is provided in these cases explains the sort of three categories of evidence or issues I guess that have to be

[00:20:54] Speaker 01:
proven by the veteran, that is, that there was a service, in-service disability or amputation.

[00:20:59] Speaker 01:
I realize that.

[00:21:00] Speaker 02:
I realize that.

[00:21:00] Speaker 02:
There's nothing wrong with that, I guess.

[00:21:03] Speaker 02:
But when they see that a veteran is doing this by himself, pro se, and all he's got is a doctor saying he's likely to be connected, a service connect, and that's it.

[00:21:17] Speaker 02:
They would think that they would go back and say, you know, is there anything else?

[00:21:22] Speaker 02:
As a doc, this doctor, that's all he said.

[00:21:25] Speaker 02:
He didn't even submit his evaluation.

[00:21:29] Speaker 01:
Um, respectfully, Your Honor, I think that the notice does not require them to do that.

[00:21:34] Speaker 01:
I think through this process, um, Mr. Forsyth was certainly afforded that opportunity.

[00:21:40] Speaker 01:
Um, the, uh, the R.O.

[00:21:44] Speaker 01:
decision certainly indicated why the claim was being denied.

[00:21:48] Speaker 01:
That was primarily because there was no indication of the continuity of this disability in the previous 20 years.

[00:21:57] Speaker 01:
I think Mr. Forsyth opted for the direct review when he went to the board, but he was at any time able to go back and provide a supplemental claim that included additional records if he had them from

[00:22:16] Speaker 01:
the treatment history from previous private doctor's visits within those 20 years.

[00:22:26] Speaker 01:
As far as I know, he did not do that.

[00:22:28] Speaker 01:
I think he still could have done that at any point through this process to include up to today.

[00:22:34] Speaker 01:
And it would have preserved the effective date of his claim.

[00:22:36] Speaker 01:
He also, and I'll note, your honor was discussing the other claims that were at issue in this case.

[00:22:44] Speaker 01:
most of them, I believe, were remanded because there was no VA examination done.

[00:22:50] Speaker 01:
I think there was certainly one that was remanded, and I'm going to forget which one, possibly the hip injury, but it was remanded because Mr. Forsythe made the argument that he had other treatment records from private physicians, but those did not appear in the record, and so the board specifically remanded that because those did not appear

[00:23:10] Speaker 01:
and had not been considered.

[00:23:13] Speaker 01:
Certainly, Mr. Forsyth was aware that treatment records, private treatment records, could be considered.

[00:23:20] Speaker 01:
He provided one, and he certainly discussed others in connection with other claims.

[00:23:25] Speaker 01:
I think that goes to show that the notice in this case was not deficient.

[00:23:33] Speaker 03:
I'm certainly... The notice is not deficient because Wilson only requires what I'll call generic notice?

[00:23:45] Speaker 01:
That's certainly part of it, Your Honor, yes.

[00:23:48] Speaker 03:
Yes, and also because you're saying the statute doesn't require notice after the claim is made.

[00:23:55] Speaker 03:
Yes, Your Honor, so I think... Although the regulation on its face seems to indicate that it's...

[00:24:01] Speaker 03:
you know, there does need to be some notice.

[00:24:03] Speaker 01:
Yes, Your Honor.

[00:24:04] Speaker 03:
Some notice will be provided after the claim is filed.

[00:24:07] Speaker 01:
Broadly speaking, Your Honor, I think our first point is that there was no problem with the timing of this notice.

[00:24:15] Speaker 01:
Second, that the notice itself is certainly comports with this court's holdings in Wilson and this court's and the Veterans Court's holdings since then about the content of the notice.

[00:24:25] Speaker 01:
It explains the types of evidence.

[00:24:27] Speaker 01:
It explains the elements of

[00:24:30] Speaker 01:
a service connection claim that the veteran needs to substantiate.

[00:24:38] Speaker 04:
And then finally... Is your point that, you know, assuming we agree with your friend on the other side, and I'm not saying we do, on the timing, the content of the notice here, if given afters, was consistent with the statute in our precedent?

[00:24:55] Speaker 01:
Absolutely, Your Honor.

[00:24:56] Speaker 01:
We think that there is no question that the content of this notice is sufficient.

[00:25:01] Speaker 03:
So then that raises the question of what kind of prejudice could there possibly be if the notice was moved up in time instead of being done after the claim had been filed.

[00:25:13] Speaker 03:
It was right there with the application.

[00:25:16] Speaker 01:
Correct, Your Honor.

[00:25:17] Speaker 01:
And we don't think there is any prejudice.

[00:25:21] Speaker 02:
Other than the fact that it's pretty much a maze.

[00:25:23] Speaker 01:
Your Honor, respectfully, I would disagree that the notice is... Well, I've read it too.

[00:25:29] Speaker 01:
Understood.

[00:25:30] Speaker 01:
And I think the notice is about as clear as it can be.

[00:25:34] Speaker 01:
It certainly provides very delineated sections about what type of claim you are pursuing.

[00:25:40] Speaker 01:
And if you are in this type of claim, here are the things you need to do.

[00:25:43] Speaker 01:
It uses bold.

[00:25:44] Speaker 01:
It uses italics.

[00:25:45] Speaker 01:
It certainly also indicates on the front, very clearly, you may wish to contact a VSO representative or your

[00:25:53] Speaker 01:
the local VA office for help with this.

[00:25:59] Speaker 01:
Candidly, Your Honor, I don't know that the content of the claim really came up until later in this case, but again, to the extent that the court is reviewing the contents of this claim, I think it certainly includes the information that it is required to and does it in a very clear format.

[00:26:15] Speaker 01:
Unless the court has any further questions, we ask that the court affirm the VA, the Veterans Court's decision.

[00:26:21] Speaker 01:
Thank you.

[00:26:23] Speaker 00:
I just want to reiterate to the court that the issue of Wilson should not be coming into play here in appellant's mind.

[00:26:32] Speaker 00:
Wilson specifically says that the notice must identify information in medical or lay evidence that's not previously provided to the secretary but necessary to substantiate the claim.

[00:26:43] Speaker 00:
And that's all that appellant is saying in this case.

[00:26:46] Speaker 00:
is that that's what's required.

[00:26:48] Speaker 00:
We're not looking for some specific evidence or for the VA to say, hey, can you submit this opinion from this doctor on this day?

[00:26:55] Speaker 03:
I just have one question.

[00:26:56] Speaker 00:
Yes.

[00:26:56] Speaker 03:
And that is, assuming for the moment that we think Wilson only requires generic notice,

[00:27:05] Speaker 03:
and that generic notice was provided here, or at least there's substantial evidence to support that finding.

[00:27:12] Speaker 03:
It's just that it was supplied before the claim actually got filed, as opposed to that generic notice being provided to Mr. Forsyth after his claim had been filed.

[00:27:22] Speaker 03:
Is there something in your briefing that identifies what the prejudice

[00:27:27] Speaker 03:
was to Mr. Forsyth under these circumstances to have gotten that notice, that legally permissible notice earlier in time as opposed to later?

[00:27:40] Speaker 00:
Yes, Your Honor.

[00:27:41] Speaker 00:
Appellant's reply brief went into very specific, well, I mean, the initial brief and the reply brief talked about the prejudice that occurred to Mr. Forsyth because Mr. Forsyth did not get the notice.

[00:27:52] Speaker 00:
But let's say he did get the notice as you guys, as the court said earlier.

[00:27:56] Speaker 00:
Let's argue that he got the notice, but he only submitted the one medical nexus opinion and his DD-214.

[00:28:03] Speaker 00:
Because the VA did not receive and review his application and let him know after that application what was still needed to substantiate the claim, what was missing according to the Mayfield court, he never then was prompted to go, hey, wait.

[00:28:19] Speaker 00:
I've got chiropractor records.

[00:28:21] Speaker 00:
I've got primary care physician records.

[00:28:23] Speaker 00:
I've got buddies I fought with in the military.

[00:28:26] Speaker 00:
They can substantiate these things.

[00:28:28] Speaker 00:
And had I known, I would have submitted that.

[00:28:30] Speaker 00:
And that would have lessened the gap of 20 years, which is why the board denied the claim in the first place.

[00:28:35] Speaker 00:
They said that there's such a big gap of time between your service when you sustain the injury

[00:28:40] Speaker 00:
versus now when you're creating this compensation application.

[00:28:44] Speaker 00:
But there were things to fill that gap, and the prejudice is in the fact that Mr. Forsythe did not know that he could submit those things, and he wasn't told by the VA.

[00:28:53] Speaker 00:
The VA has a duty to optimize the veteran's claim, to develop their claim to the maximum.

[00:29:00] Speaker 00:
And if you give the veteran the notice before they file their application, it preempts the development.

[00:29:09] Speaker 00:
The VA is not assisting him with what else is needed, or how else can you prove your claim?

[00:29:13] Speaker 00:
And that's what Mr. Forsythe lost, and that's how he's prejudiced.

[00:29:16] Speaker 00:
There's now 20 years' worth of treatment records from private physicians and statements

[00:29:21] Speaker 00:
from his friends and family who corroborate his shoulder issues that the VA did not have the benefit of having when they decided his claim.

[00:29:30] Speaker 00:
I want to mention one last thing.

[00:29:31] Speaker 00:
The counsel for the secretary mentioned that this is a direct review lane case.

[00:29:37] Speaker 00:
Let me remind the court, that means the record was closed as of the original decision, meaning that the veteran could submit no more evidence.

[00:29:45] Speaker 00:
So he filed his application, was never told what else he could give in order to substantiate his claim,

[00:29:50] Speaker 00:
And months later, they issued a rating decision denying it.

[00:29:53] Speaker 00:
And as of that point, he could no longer submit any more evidence to the VA about his claim.

[00:29:58] Speaker 00:
The record was closed.

[00:30:00] Speaker 00:
That's how AMA works, as I'm sure the court is aware.

[00:30:04] Speaker 03:
OK.

[00:30:04] Speaker 03:
Thank you very much.

[00:30:05] Speaker 03:
We have your argument.

[00:30:06] Speaker 03:
Thank you.

[00:30:07] Speaker 03:
And that concludes the argument.

[00:30:08] Speaker 00:
Thank you for your time.