[00:00:00] Speaker 03:
cases number 22, 14, 13, Lewis versus McDonough.

[00:00:07] Speaker 02:
May it please the court, Kenneth Carpenter appearing on behalf of Ms.

[00:00:13] Speaker 02:
Lewis.

[00:00:16] Speaker 02:
Since this court, excuse me, since this appeal was filed, this court has issued two

[00:00:22] Speaker 02:
precedential decisions which affect the outcome of this appeal.

[00:00:26] Speaker 02:
Both parties have submitted those decisions as supplemental authority and each of them address the two arguments that were presented by Ms.

[00:00:35] Speaker 02:
Lewis in her appeal.

[00:00:37] Speaker 02:
This court may deem it appropriate to have supplemental briefing in light of that, but otherwise I am prepared to present why I believe the Spicer case controls the first issue and the Guinness case does not control the second issue.

[00:00:56] Speaker 02:
The first issue is the court's interpretation of 38 USC 1110, which this court addressed in Spicer and confirmed that the Veterans Court in Spicer relied upon a misinterpretation of 1110.

[00:01:12] Speaker 02:
Specifically, Spicer clarifies the question of the causation standard under 1110 as simply being a but for causation standard for the purposes of establishing service connection.

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Further, the court rejected the VA's contention that the but for causation standard meant to bring something about or the onset or the ideological link in order to establish service connection.

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The decision of the Veterans Court in this case, therefore, should be vacated and remanded for the Veterans Court

[00:01:49] Speaker 02:
to consider this matter under the but for standard of causation, specifically in regards to the first or one of the two issues, the left hip pain in which there was specific evidence of record

[00:02:05] Speaker 02:
that dealt with the question of whether or not that was secondary to an existing service-connected disability.

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Below, Ms.

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Lewis identified evidence... Mr. Carpenter, I'm sorry.

[00:02:18] Speaker 03:
I'm not following what you're saying.

[00:02:20] Speaker 03:
Help me understand what the argument was that you made in the original brief and how this case helps you.

[00:02:28] Speaker 02:
The original argument was that the Veterans Court misinterpreted the

[00:02:34] Speaker 02:
requirements for entitlement to service connection under 1110 and used a standard... Is this because of the definition of the word claim?

[00:02:42] Speaker 02:
Well, not entirely, Your Honor, but

[00:02:52] Speaker 02:
that was part of what the Veterans Court relied upon in its decision.

[00:02:58] Speaker 03:
My understanding is there was an original claim and then during the one-year period there was a supplemental file, right?

[00:03:08] Speaker 02:
Well, I'm sorry, that's the second issue, Your Honor.

[00:03:10] Speaker 02:
That's the 3.156b issue.

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Okay.

[00:03:15] Speaker 02:
This case involves a claim for service connection for a left hip condition and a right ankle condition.

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That issue pertains to the question of the legal standard for establishing service connection based upon pain that was set out in this court's decision in Saunders.

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And the Veterans Court in that decision or in that on those two issues, those two claims relied upon

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its decision in weight.

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The decision in weight dealt only with the question of what the requirements were for a claimant to demonstrate when pain rises to the level of a compensable rating.

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That is a question that goes to the rating of the condition, not the entitlement to service connection.

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The board denied service connection for both left hip pain and for the right ankle.

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And that's the first issue on appeal.

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Is that the issue that implicated whether there was any limitation or impact on her ability to earn?

[00:04:24] Speaker 02:
Yes, Your Honor.

[00:04:25] Speaker 04:
And so is it your contention that something we've said in a recent case changed our law that said you do have to show in order to show service connection that there was some impact on her ability to earn an income?

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I don't believe it changed it, Your Honor.

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What it did, in my view, is to clarify it.

[00:04:44] Speaker 02:
that the court in spicer clarified the issue of causation the issue of causation was not at issue in uh... the saunders case at issue in the saunders case was whether or not pain in and of itself constituted a disability so they weren't dealing with the question of what is the standard to be entitled to service connection but then we'll deal with this in frazier

[00:05:09] Speaker 03:
I mean, and I thought that what we said in Frazier was that you had, apart from the unusual situation where there are several levels in the diagnostic code, which is not the situation here, that in order to make a claim for pain, you had to come within

[00:05:33] Speaker 03:
one of the diagnostic codes and that there wasn't a freestanding entitlement to service connection for pain, confirming our earlier decision in that respect.

[00:05:44] Speaker 02:
That's correct.

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That was the holding in Frazier.

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But the issue that was addressed by the Veterans Court was not that question.

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The question addressed by the Veterans Court was whether or not the pain that was in evidence as related to

[00:06:00] Speaker 02:
uh... both of these conditions arose to the level that would be entitled to service connection my assertion is is that this course of the impact on functional yes based upon the impact of functionality or what's the mistake the mistake is is that that goes to the way that the entitlement to compensation not the entitlement to service connection and that this court's kate decision in spicer within a major we said you had to come within this

[00:06:31] Speaker 03:
There's no separate.

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Frazier specifically said there's no separate claim based on tame.

[00:06:39] Speaker 02:
No, Your Honor.

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But the claims here, as opposed to in Frazier, were based upon an assertion that there was an entitlement to compensation for a left hip injury and a right ankle injury.

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The basis for the appeal below was the medical evidence of pain.

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court below dealt with the question of pain only through the limited lens of whether or not it was or wasn't compensable.

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That is a different issue than what this court addressed in Spicer, which is what is the legal standard to establish service connection for a condition that may, as in this case, involve pain.

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But more importantly, with the first condition, with the left hip, it involves the question of

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secondary condition which was expressly addressed in Spicer.

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If I can move now to the 3.156B issue.

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This issue deals separately with claims involving the effective date to be assigned for the award of service connection for tinnitus, for migraine headaches, and the back.

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These are three separate claims from the first two claims

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that dealt with service connection.

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In this case, Ms.

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Lewis presented to the Veterans Court the question of whether or not 3.156B should have been considered in the first instance in assigning the effective date below.

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This court has decided the question of gdynas, which dealt with the interpretation of

[00:08:20] Speaker 02:
uh... three point one five six b but in a different context in which uh... this court expressly relied upon the fact that the board had made a factual finding that mister good i missus made twenty fourteen claim did not mention the psychiatric disability or reflect any intent to file the increased disability rating for ptsd and mister good i missed did not raise uh... a challenge to that finding a fact before the veterans court

[00:08:50] Speaker 02:
In this case, there is no such finding.

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The board did not make a finding because the board didn't consider or apply 3.156.

[00:08:59] Speaker 04:
There's also, unless I've missed it, so help me if I have, there's no reference anywhere in or around the April filing of any reference to the three conditions that you just listed.

[00:09:11] Speaker 04:
and made in your December filing.

[00:09:13] Speaker 04:
Isn't that right?

[00:09:14] Speaker 02:
That is correct, Your Honor.

[00:09:15] Speaker 04:
So how could something that she only claimed in December of, I think, 2016 get a date of filing back in April before it was ever even mentioned?

[00:09:26] Speaker 02:
And I believe I can explain that, Your Honor.

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In the facts of this particular case, in the facts of this case, Ms.

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Lewis sought to reopen the previously denied claims for her right hip and her post-traumatic stress disorder.

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The VA denied that in July of 2016.

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Within one year of that decision, Ms.

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Lewis filed 11 additional disability claims seeking service-connected compensation, including the three conditions that are at issue for effective date here, the tinnitus, the migraine headaches, and the back.

[00:10:03] Speaker 04:
What is the first mention of tinnitus, migraine headaches, and back?

[00:10:06] Speaker 02:
In that application, Your Honor.

[00:10:08] Speaker 04:
In the December application?

[00:10:09] Speaker 02:
In the December application.

[00:10:11] Speaker 03:
So how could that relate back?

[00:10:15] Speaker 02:
I'm about to hopefully explain that, your honor, because in the decision on appeal below the March 26, 2019 decision, which is an appendix 99 to 122, includes a finding of fact that the psychiatric claim and the right and left hip claims were reopened.

[00:10:37] Speaker 02:
So that claim that began

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nine months earlier was reopened.

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So that claim was in fact pending at the time in which this new evidence was received.

[00:10:50] Speaker 02:
It's a different claim, isn't it?

[00:10:53] Speaker 02:
They are different claims, Your Honor, in terms of what they're seeking compensation for.

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They are not different claims in terms of what they're seeking from the VA, and that is the entitlement to compensation.

[00:11:06] Speaker 02:
All of these claims merged together based upon this March 2019 decision, which reopened the earlier claims, which then placed them within the same claim stream as the later submitted 11 additional claims, including the three claims.

[00:11:25] Speaker 00:
But that argument is predicated, I take it, on the argument that you've made in Gudanis, and I think whether it was you or another advocate made in Manzaneras.

[00:11:36] Speaker 00:
in which the argument was that a claim is defined as a request for benefits.

[00:11:44] Speaker 02:
That's correct, yeah.

[00:11:45] Speaker 00:
But I thought Guadena said pretty clearly that that's not correct, that that's not the right definition of claim.

[00:11:53] Speaker 00:
The claim is a claim for a specific disability.

[00:11:59] Speaker 02:
It did so, Your Honor, but it did so predicated upon a specific finding of fact made by the board, which didn't exist here, which goes to the underlying nature of the appeal made by Ms.

[00:12:14] Speaker 02:
Lewis, which was that the board had an obligation to consider 3.156B, and the Veterans Court said it did not.

[00:12:22] Speaker 02:
That is an interpretation of 3.156B as to whether or not in

[00:12:28] Speaker 02:
precisely the context that you just described are the successive claims for service-connected compensation.

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In this case, within a period of nine months, part of

[00:12:41] Speaker 02:
a claim stream for service-connected compensation.

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We believe that that is substantiated by the board's decision, which reopened the predecessor claim and then made that all part of the same claim stream for service-connected compensation.

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I see that I'm way into my rebuttal time.

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I'd like to reserve the balance.

[00:13:00] Speaker 02:
Okay.

[00:13:00] Speaker 02:
Thank you, Mr. Carpenter.

[00:13:04] Speaker 03:
Mrs. Villanueva.

[00:13:08] Speaker 01:
Good morning.

[00:13:08] Speaker 01:
May it please the court?

[00:13:10] Speaker 01:
As Mr. Carpenter noted, we're dealing with sort of two categories of claims here.

[00:13:15] Speaker 01:
There is the left hip and right ankle condition where the board denied service connection because it found that there was no present disability.

[00:13:24] Speaker 01:
And then we've got the back pain, the tinnitus, and the headache where the board granted service connection and Ms.

[00:13:29] Speaker 01:
Lewis disputes the effective date.

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Both sets of claims share the similarity that they are precluded on the one end

[00:13:38] Speaker 01:
by fact findings that the board made and that this court obviously may not review, and on the other end, by prior binding precedent of this court that addressed the legal questions.

[00:13:49] Speaker 01:
So I'll start with the left hip and the right ankle conditions.

[00:13:52] Speaker 01:
Those are the ones where the board found that there was no present disability.

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I'll note as a procedural matter at the outset, I don't believe Ms.

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Lewis actually filed a 28-J letter on Spicer.

[00:14:02] Speaker 01:
But in any event, that case deals with a later question.

[00:14:06] Speaker 01:
The issue of causation is also not an issue in this case, because causation only comes into play once you have a present disability.

[00:14:15] Speaker 01:
Whether that's primary service connection or secondary service connection, you first have to have a present disability.

[00:14:23] Speaker 01:
And the Saunders decision explains that in order to have a present disability, you need to show a pain that reaches the level of functional impairment of earning capacity.

[00:14:35] Speaker 01:
And that is precisely what the board, in this case, found did not exist.

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And that's at appendix pages 106 and 107 are those board findings that Ms.

[00:14:45] Speaker 01:
Lewis did not have a functional impairment that affected her earning capacity in her left hip or right ankle.

[00:14:52] Speaker 01:
And that fact finding, which she did not actually challenge at the Veterans Court either, but certainly is not reviewable at this court, means that she cannot meet the definition in Saunders.

[00:15:03] Speaker 01:
And Saunders explicitly

[00:15:04] Speaker 01:
rejected the idea that paying without a functional impairment could be a present disability.

[00:15:11] Speaker 01:
The court, and I'm quoting page 21 of the opinion is issued by the court, which I think is pages 1367 to 68 in the federal reporter, explicitly held that we do not hold that a veteran could demonstrate service connection simply by asserting subjective pain.

[00:15:28] Speaker 01:
You have to demonstrate the functional impairment to earning capacity.

[00:15:34] Speaker 01:
So we just don't get to the questions that Ms.

[00:15:37] Speaker 01:
Lewis wants to raise about how do you demonstrate service connection where there is a present disability, because the board decided this issue at an earlier step in the analysis.

[00:15:48] Speaker 01:
With respect to the effective date conditions, the back pain, the tinnitus, and the headache, I think Adinus is on, other than the name of the veteran and the date of the claims, is exactly factually analogous to this case.

[00:16:03] Speaker 01:
Ms.

[00:16:03] Speaker 01:
Lewis.

[00:16:04] Speaker 01:
The first time that she submitted a claim for any of these conditions was, well, so she did have an earlier.

[00:16:13] Speaker 01:
In 2009 and 2010, she submitted a claim for the back pain and the tinnitus.

[00:16:18] Speaker 01:
And that was denied, and that denial became final.

[00:16:22] Speaker 01:
And so I believe when the board talks about reopening those claims, it's referring to the fact that she had them previously, but that earlier claim stream became final.

[00:16:32] Speaker 01:
It's certainly not referring to reopening the April 2016 decision, which didn't raise those conditions at all.

[00:16:39] Speaker 01:
And for the headache, the board specifically found that the first time she raised a claim for a headache anywhere in any of her submissions was the December 2016 claim.

[00:16:52] Speaker 01:
And so she already has an effective date that is the earliest time that she has brought these conditions to and

[00:17:00] Speaker 01:
the earliest claim stream that she has for these conditions at the VA.

[00:17:04] Speaker 01:
And 3.156 is just not applicable in this circumstance.

[00:17:11] Speaker 01:
Conceivably, had she tried to reopen her PTSD claim, for example, and submitted evidence to that, that would be a situation where we would consider whether that's new and material evidence, whether 3.156 applies.

[00:17:23] Speaker 01:
But she's not talking about the conditions that were in her April 2016 claim.

[00:17:27] Speaker 01:
She's talking about the conditions that are in the December 2016 claim.

[00:17:30] Speaker 01:
which is already the effective date that she has.

[00:17:35] Speaker 04:
Did the board at least have an obligation to go through that analysis and say, is this new and material evidence for anything that's still pending?

[00:17:44] Speaker 04:
And then say, it isn't.

[00:17:47] Speaker 04:
It doesn't look like they even did that.

[00:17:49] Speaker 01:
So I think they do not.

[00:17:50] Speaker 01:
And I think Gudina explicitly says that they do not.

[00:17:53] Speaker 01:
And this is page 7 of the opinion, or I believe page 720 of the reporter.

[00:17:59] Speaker 01:
that the board need not explicitly determine whether a claim constitutes new and material evidence relating to a previous claim when the two claims are separate for effective date purposes and the conditions underlying the claims have no apparent connection to one another.

[00:18:13] Speaker 01:
I think what the board is obligated to do and what it did is to consider

[00:18:18] Speaker 01:
What is the earliest effective date that we can grant for this condition now that we've service connected it?

[00:18:23] Speaker 01:
When is the earliest live stream where the veteran has submitted this claim?

[00:18:31] Speaker 01:
And that is what the board did here.

[00:18:34] Speaker 01:
And that's at appendix pages 112 to 114.

[00:18:38] Speaker 01:
It goes through the effective data analysis.

[00:18:40] Speaker 01:
And on page 113, it explicitly makes a finding that absent any evidence that the veteran attempted to appeal the prior denial, that's the 2009-2010 claim stream that closed, or file a claim prior to December 26, 2016, the board cannot assign an effective date for the grant of service connection for tinnitus or the lumbosacral strain earlier than December 26, 2016.

[00:19:07] Speaker 01:
So that's a specific finding that that's the earliest the chief

[00:19:10] Speaker 01:
filed a claim for those conditions.

[00:19:12] Speaker 00:
As a practical matter, what is the process that the board would go through in making a determination as to what the earliest date is?

[00:19:24] Speaker 00:
Presumably, they would have to look at, whether triggered by a request from her or otherwise, they would have to look at any prior claims that were made, right?

[00:19:36] Speaker 00:
Right.

[00:19:36] Speaker 00:
And they would have to determine, I take it, well, those claims

[00:19:40] Speaker 00:
either don't don't relate to the uh... the current claim or they do if they do you jump back if it's within the one-year period and if they don't then uh... uh... then you move on but isn't that necessary for the board to do in order to determine what the earliest date is so i think that they obviously they need to look at sort of what is the earliest live stream uh... and and they did that here they they looked at

[00:20:10] Speaker 01:
And again, this is appendix pages 112 to 113, that she had, for example, this prior 2009 claim that was denied in 2010, that that became final.

[00:20:23] Speaker 01:
They considered whether she appealed that case or whether that became final.

[00:20:29] Speaker 01:
And they made a finding that, between that final denial and December 26, 2016, she had not made a claim for those conditions, and that there was no evidence that she pursued those.

[00:20:41] Speaker 01:
And I believe Mr. Krumberger read it up.

[00:20:42] Speaker 00:
And hence, they were making a finding, either expressly or implicitly, that what happened in April didn't relate to what was claimed in December.

[00:20:51] Speaker 00:
I think that's right.

[00:20:53] Speaker 00:
And I believe- And therefore, are we

[00:20:57] Speaker 00:
arguing over whether they needed to say that expressly with respect to each prior claim that was made that could conceivably be attached as a timing for purposes of establishing the timing of the effective date.

[00:21:14] Speaker 01:
I mean, I think certainly they do not have to go through the exercise of explicitly saying with every filing that this also doesn't count, this also doesn't count.

[00:21:23] Speaker 00:
But you're saying, I think, in response to my question, you're saying they do have to go through that exercise at least without saying it.

[00:21:31] Speaker 00:
They have to go through it in order to determine whether there is an earlier effective date, right?

[00:21:37] Speaker 01:
I think that's right.

[00:21:38] Speaker 01:
And I think they did that here.

[00:21:40] Speaker 01:
When they look back to see when is it that the claim was filed and what is the earliest live stream for this condition that exists, they're looking back at all of the evidence that they have before them.

[00:21:55] Speaker 01:
And in this case, they found that there was no evidence.

[00:21:58] Speaker 01:
that there was a claim for any of these three conditions before December 26, 2016, which is the effective date that they granted her.

[00:22:05] Speaker 03:
Well, in any event, there's no claim here that they didn't do that, right?

[00:22:08] Speaker 01:
I think that's right, yeah.

[00:22:09] Speaker 01:
I believe Mr. Koepner conceded that the April 2016 submission did not contain a claim for back pain, tinnitus, or headache, and that the earliest live claim for any of either of those three conditions came in December, which is the effective date that she currently has.

[00:22:27] Speaker 04:
I think Mr. Carpenter maybe mentioned a second supplemental authority.

[00:22:32] Speaker 04:
I may be misremembering what he said.

[00:22:34] Speaker 04:
Did he mention a second case?

[00:22:36] Speaker 01:
So we filed a 28-J letter on Gudinus.

[00:22:40] Speaker 01:
So I believe that was supposed to be the two.

[00:22:44] Speaker 01:
But I think procedurally, there is not one for Spicer.

[00:22:48] Speaker 01:
So if there are no further questions from the court, depending on how the court chooses to interpret Ms.

[00:22:53] Speaker 01:
Lewis's arguments,

[00:22:54] Speaker 01:
We would ask that you either dismiss for lack of jurisdiction on the factual questions or affirm on the legal ones.

[00:23:14] Speaker 02:
this is where fire we did submit a supplemental authority on it's june 1st and june 1st i haven't seen it i don't know what happened i'll try to confirm that it was received by the court and i know that we we filed it i will make sure that it's for the court we're aware of the case now the other thing that i'd like to clarify is that uh...

[00:23:45] Speaker 02:
The government suggests that somehow there is a sequential process in establishing service connection and that you have to establish the existence of what they refer to as a present disability.

[00:24:01] Speaker 02:
That to me is the precise issue that was addressed by this court in Spicer because Spicer dealt with a secondary condition that was the result of a service connected condition

[00:24:14] Speaker 02:
that had no relationship whatsoever to service.

[00:24:19] Speaker 02:
And it was that service connected condition which precluded the veteran from getting treatment for his knee condition.

[00:24:27] Speaker 02:
In any event, we do believe that there is not a one size fits all process

[00:24:37] Speaker 02:
of a sequential analysis for establishing service connection, and this court's decision in Spicer establishing the but for cause standard clarifies that.

[00:24:49] Speaker 02:
In relationship to Godinus, it's important to clearly understand that contrary to the representation of the VA, these are not the same facts.

[00:24:59] Speaker 02:
And in fact, the reopening that was made was not the reopening of the earlier tinnitus claim

[00:25:07] Speaker 02:
et cetera, but the reopening of the PTSD and the HIP claim.

[00:25:13] Speaker 02:
That was done in the same decision.

[00:25:16] Speaker 02:
So the board had before it the reopening, which established the ongoing or continuous claim for service connection for those conditions, both of which had been granted subsequently, and then

[00:25:31] Speaker 02:
they went on to deny these other conditions an earlier effective date.

[00:25:38] Speaker 02:
So the claim stream from the beginning of this claim, with the PTSD claim, was all part and parcel of what was before the board.

[00:25:48] Speaker 02:
And we believe that that's the correct interpretation of 3.156B.

[00:25:51] Speaker 02:
Thank you, Your Honor.

[00:25:52] Speaker 02:
Thank you, Mr. Carpenter.

[00:25:54] Speaker 02:
Thank you, Ms.

[00:25:55] Speaker 02:
Villalobos.

[00:25:55] Speaker 02:
The case is submitted.