[00:00:00] Speaker 02:
Our first case is appeal number 22-1057, Pickett versus Madonna.

[00:00:08] Speaker 02:
Mr. Carpenter, are you ready?

[00:00:10] Speaker 00:
I am, Your Honor.

[00:00:11] Speaker 00:
Thank you very much.

[00:00:12] Speaker 00:
May it please the court, Count Carpenter, appearing on behalf of Mr. David.

[00:00:16] Speaker 02:
Oh, wait.

[00:00:16] Speaker 02:
Before you start, I'm sorry.

[00:00:18] Speaker 02:
If we could stop the clock for a second.

[00:00:21] Speaker 02:
I have one request.

[00:00:23] Speaker 02:
Could you provide the court with a copy of what you refer to on page 11 of your opening brief as Mr. Pickett's October 2007 claim?

[00:00:34] Speaker 02:
I believe it's also referenced at appendix 54.

[00:00:37] Speaker 00:
Sorry, what page?

[00:00:40] Speaker 02:
It's on your brief at page 11.

[00:00:42] Speaker 02:
And you refer to it as Mr. Pickett's October 2007 claim.

[00:00:49] Speaker 02:
I don't think we have it in the appendix.

[00:00:52] Speaker 00:
Oh, oh, oh, oh.

[00:00:56] Speaker 00:
I will double check your honor, but I honestly think I couldn't find it, which is why it's not in the appendix.

[00:01:01] Speaker 00:
That was referred to in the court's decision as the date of receipt.

[00:01:07] Speaker 00:
And so I would look for the reason.

[00:01:11] Speaker 00:
If it is, if there is one, I will be happy to provide it.

[00:01:15] Speaker 03:
I think it's referenced at also page 54 of the appendix.

[00:01:23] Speaker 03:
where it's referred to as, quote, Mr. Pickett's claim for increased evaluation that was received on October 1.

[00:01:32] Speaker 03:
Yes, yes.

[00:01:33] Speaker 03:
It would be helpful if we could get a copy of that document.

[00:01:38] Speaker 00:
I'd be happy to provide it if it's in the materials.

[00:01:49] Speaker 00:
Thank you.

[00:01:54] Speaker 00:
I am in the unusual circumstance this morning of not asking that this court create a jurisprudence or precedent.

[00:02:04] Speaker 00:
To the contrary, I'm asking this court to find that the Veterans Court did not follow this court's jurisprudence.

[00:02:10] Speaker 03:
Mr. Carter, if I could, just at risk of being a Johnny one note.

[00:02:14] Speaker 03:
That's OK.

[00:02:15] Speaker 03:
To get back to that document, that October 2007 document,

[00:02:23] Speaker 03:
And correct me if I'm wrong.

[00:02:24] Speaker 03:
It's not mentioned in the board decision.

[00:02:28] Speaker 03:
I don't think it's in your brief before the Veterans Court.

[00:02:32] Speaker 03:
And I didn't see it referenced in the decision of the Veterans Court and isn't discussed in any of those places.

[00:02:40] Speaker 03:
But then at pages 11 or 10 through 12, I guess, of your opening brief here, it's the focus of the whole argument.

[00:02:50] Speaker 03:
the 2007 claim that you referred to.

[00:02:54] Speaker 03:
And then it disappears.

[00:02:56] Speaker 03:
And we don't see it again.

[00:02:58] Speaker 03:
It's not referenced anywhere else in your brief or in the reply brief.

[00:03:03] Speaker 03:
And the government doesn't talk about it.

[00:03:04] Speaker 03:
What is that all about?

[00:03:06] Speaker 03:
It's the springboard for your argument.

[00:03:09] Speaker 03:
But we don't hear from it again.

[00:03:11] Speaker 00:
Well, it really isn't the springboard for my argument.

[00:03:15] Speaker 00:
It seems to be.

[00:03:16] Speaker 00:
Well, Your Honor, it relates back to what is identified as a claim made for CAD by Mr. Pickett.

[00:03:25] Speaker 03:
But how is it made for CAD?

[00:03:26] Speaker 03:
Because the CAD didn't come in until after the Nemer issue, right?

[00:03:34] Speaker 00:
Unless I have my order of proceedings out of order, I thought that that was the basis for the Nehmer inquiry.

[00:03:45] Speaker 03:
No, Nehmer, as I understood it, this was something that was submitted in October of 07 to increase the PTSD compensation.

[00:03:58] Speaker 03:
And then we don't have Nehmer, I think, until 09.

[00:04:03] Speaker 03:
And I was just trying to understand what all this discussion is of those pages about this 07 claim when we don't hear about it again or see it again.

[00:04:15] Speaker 00:
It is referenced in the rating decision of December 28, 2007.

[00:04:22] Speaker 00:
Right.

[00:04:23] Speaker 00:
And that's in the joint appendix of 58 to 54.

[00:04:25] Speaker 00:
54 to 57.

[00:04:28] Speaker 02:
How does it relate to your argument before us today?

[00:04:31] Speaker 00:
It relates in this way, Your Honor.

[00:04:33] Speaker 00:
When the ultimate grant is made of service connection for CAD, based upon the NEMA review, the effective date assigned was the date of the original claim for PTSD.

[00:04:49] Speaker 00:
We make no assertion that he explicitly asserted entitlement to CAD, but that's what the VA found

[00:04:58] Speaker 00:
was the effective date.

[00:05:00] Speaker 00:
And the only way you can find effective date is the date of the claim.

[00:05:05] Speaker 00:
So there is a favorable disposition by the government, by the VA, that there was a claim made in 2004 for both PTSD and, by implication, CAD.

[00:05:20] Speaker 00:
And the way that that's relevant, Your Honor, is that under the Nehmer settlement,

[00:05:28] Speaker 00:
and the ultimate VA regulations implementing it.

[00:05:32] Speaker 00:
That settlement requires a review when there is something new added, and the CAD was something added.

[00:05:41] Speaker 00:
And then you have to examine whether or not there was an earlier claim made in order to assign the effective date.

[00:05:50] Speaker 00:
And so the VA implicitly did that when they assigned the effective date for the CAD, which in our view,

[00:05:58] Speaker 00:
then ties those two issues into the same original claim in 2004.

[00:06:08] Speaker 02:
I hear what you're saying.

[00:06:09] Speaker 02:
My only trouble is that I'm having a hard time when you're talking about the claim in 2004.

[00:06:13] Speaker 02:
Why do we need to know about the claim in 2007 if your effective date is 2004?

[00:06:19] Speaker 00:
Because that was the date that the Mr.

[00:06:28] Speaker 03:
He saw an increase in the compensation that he'd been given in 05.

[00:06:34] Speaker 00:
That's correct, which was a product of the 04 grant, and then ultimately resulted in an assignment of an increased rating.

[00:06:45] Speaker 00:
And then he proceeded with the implications for TDIU as he pursued that matter, but then independently.

[00:06:55] Speaker 00:
of his pursuit, the VA, um, Swiss Ponte, under the Nehmer review requirements, decided that they would review for CAD, granted it, but made the grant not from the date of when Mr. Pickett asked for it.

[00:07:17] Speaker 00:
but from the date of his original claim in 2004.

[00:07:20] Speaker 00:
And the only connection there is the notation that Mr. Pickett made in his original application that he was a Vietnam-era veteran, that he served in Vietnam.

[00:07:33] Speaker 00:
So that's the only conceivable application.

[00:07:36] Speaker 01:
So are you trying to tell us about all these things to kind of build a claim stream, for lack of a better phrase?

[00:07:41] Speaker 01:
Is that part of it?

[00:07:42] Speaker 00:
Yes, Your Honor, that the action in Nehmer

[00:07:45] Speaker 00:
creates a continuous claim stream because when they rented ultimately the CAD, they had to combine it with the existing rating.

[00:07:56] Speaker 00:
And I think my recollection is that they assigned a 10% rating for each and gave a combined rating of 20% for those two conditions as the initial rating.

[00:08:09] Speaker 00:
So that shows clearly that the VA was treating these as part of an original claim stream that started in 2004.

[00:08:19] Speaker 00:
And yes, these are extraordinary circumstances and not within what we would call the traditional adjudicatory cycle.

[00:08:27] Speaker 00:
But the reality is that this is the nature of VA adjudications.

[00:08:33] Speaker 00:
that they are intended to be pro-claimant, and this is one of the ways in which they are pro-claimant, is to take that opportunity to recognize that there is something fundamentally correct in granting it from 2004 rather than the date that he specifically asked for it.

[00:08:53] Speaker 00:
And by doing that, that inextricably ties his original 2004 claim to the claim presented here.

[00:09:00] Speaker 02:
So can I ask you now,

[00:09:02] Speaker 02:
Your main contention on appeal, as I understand it, is that the board decision in January 2013 and April 2014 didn't follow our case law, maybe bond and barode.

[00:09:17] Speaker 02:
Bond and barode, yes.

[00:09:19] Speaker 02:
Treating, identifying the new and material evidence, right?

[00:09:24] Speaker 02:
Or saying that they can, what exactly do you think they didn't do that they should have done?

[00:09:29] Speaker 00:
I believe that this court's precedent in Bond and then reinforced in Barad clearly articulate a two-step requirement for the secretary.

[00:09:40] Speaker 00:
That the secretary, upon receipt of new and material evidence, and the Veterans Court in the decision on appeal agreed that the board had made an error by saying that it hadn't received new and material evidence based upon

[00:09:56] Speaker 00:
the 8940 or the TDIU application that was received.

[00:10:01] Speaker 00:
And the board itself found that the receipt of the Social Security records was new and material evidence that was received.

[00:10:11] Speaker 00:
The second part of the test under Bond and Barad is that upon receipt, the secretary shall make an assessment as to whether or not the new and material evidence received

[00:10:22] Speaker 00:
And now we have a finding that there was new and material evidence received, must be assessed to determine whether or not that evidence relates back to the original claim.

[00:10:34] Speaker 00:
In this case, we believe, then, 2004, for service connection for both of these conditions and the appropriate rating, the maximum rating that's available under law.

[00:10:47] Speaker 02:
Now, as I recall, say, the January 2013 decision did list the TDIU, the alleged new and material evidence, as evidence that was of record or considered.

[00:11:03] Speaker 00:
Yes.

[00:11:04] Speaker 02:
What do you think Bond and Borough require beyond that?

[00:11:10] Speaker 00:
That once received,

[00:11:15] Speaker 00:
And I don't believe that fact is in dispute, that the VA received it.

[00:11:20] Speaker 00:
They have to make a determination as to whether or not it's new and material, and then whether or not that new and material evidence relates back.

[00:11:29] Speaker 00:
And what Barad reinforces is the initial statement in bond that until that assessment is done, that original claim remains pending as a matter of law.

[00:11:41] Speaker 00:
And if it's pending, then the board can't do something without a decision by the secretary.

[00:11:48] Speaker 00:
And the decision by the secretary.

[00:11:49] Speaker 01:
Are there certain words that you think need to be in there to know that an assessment has been made?

[00:11:53] Speaker 00:
I'm sorry, Your Honor.

[00:11:55] Speaker 01:
Are there specific words that you're looking for to say that, yes, now an assessment has been made?

[00:12:00] Speaker 00:
In the language of bond, I believe the, as it were, magic words are

[00:12:11] Speaker 01:
So you do believe there are certain magic words that need to be there in order to say it?

[00:12:14] Speaker 00:
Oh, yes.

[00:12:15] Speaker 00:
Yes.

[00:12:16] Speaker 00:
Because Bond established the interpretation of 3.156b.

[00:12:22] Speaker 00:
And then we had to wait several more years to get Barad because the Veterans Court and the agency were doing a work around the requirements of Bond.

[00:12:36] Speaker 00:
And what Barad reinforced was is until you make that explicit

[00:12:40] Speaker 00:
I'm trying to find the language here.

[00:12:44] Speaker 00:
Yes.

[00:12:45] Speaker 00:
Barad says the VA must provide a determination that is directly responsive to the new submission.

[00:12:52] Speaker 00:
And by directly responsive, they have to say, we've got it.

[00:12:56] Speaker 00:
It is or isn't new and material.

[00:12:58] Speaker 00:
And it does or doesn't relate back to the original claim.

[00:13:02] Speaker 00:
And until they do that.

[00:13:03] Speaker 02:
What about the language in Bond or Broad that says, absent any indication in the record that

[00:13:09] Speaker 02:
the analysis occurred.

[00:13:12] Speaker 02:
What if there's an indication, for example, here, and the argument is that because the evidence is listed in the board's decision,

[00:13:21] Speaker 02:
just as being evidence along with other evidence, that means that they considered it or thought it was part of the record, and then it related back.

[00:13:28] Speaker 02:
They weren't going to say, oh, this is new evidence we're not going to consider because it wasn't timely filed, right?

[00:13:35] Speaker 02:
Instead, by considering it, they acted as if it had been in the record all the time.

[00:13:40] Speaker 02:
And isn't that all that the regulation requires?

[00:13:43] Speaker 00:
Oh, absolutely not, Your Honor.

[00:13:44] Speaker 00:
Not as interpreted by this court in bond.

[00:13:47] Speaker 00:
Bond was a new claim, according to the VA, that was treated by the VA as a new claim.

[00:13:55] Speaker 00:
This court in Bond said, regardless of the label, whether you treat it as a new claim or not, and adjudicate it as a new claim, you haven't met the requirements of your own regulation.

[00:14:08] Speaker 00:
This is a regulation without a statutory predicate in which the secretary has decided, under his 501A authority, to write a regulation

[00:14:17] Speaker 00:
that it was mandatory that when he receives new and material evidence, his adjudicators are required to make this assessment.

[00:14:27] Speaker 00:
And that is the holding in bond.

[00:14:30] Speaker 00:
That is the precedent that was created in order to make a assessment that is outlined

[00:14:39] Speaker 00:
by the very language used by the secretary in his regulation, as interpreted by this court.

[00:14:45] Speaker 03:
Just one quick question, because time is fleeing.

[00:14:47] Speaker 03:
You've been discussing with Judge Stone, Judge Cunningham, the January 13, April 04 documents.

[00:14:58] Speaker 03:
Does your case, if we agree with you on your reading of those documents,

[00:15:05] Speaker 03:
bond and barode, you win.

[00:15:10] Speaker 03:
If we don't agree with your reading, do you lose?

[00:15:14] Speaker 03:
Is that the end of the case?

[00:15:15] Speaker 00:
I don't want to overstep my balance here, Your Honor, but I do not believe that this panel has the authority to make that contrary determination.

[00:15:26] Speaker 00:
Because what I read in this court's precedent is that this is a mandatory assessment.

[00:15:35] Speaker 00:
not an optional assessment or an implicit assessment.

[00:15:39] Speaker 03:
I understand what you're saying, but if we read it the way you do, you would say you win, right?

[00:15:44] Speaker 03:
But what if we read it differently?

[00:15:46] Speaker 03:
Do you lose?

[00:15:47] Speaker 00:
Well, I don't know how a panel of this court can read the language of a presidential decision differently without going in bomb.

[00:15:59] Speaker 02:
Hypothetically, let's say we even went in bomb.

[00:16:01] Speaker 02:
Let's say we did that.

[00:16:02] Speaker 02:
What would your answer to be to Judge Shaw's question?

[00:16:06] Speaker 00:
that the inbound court most certainly can decide whether or not there are holes, if you will, or exceptions, or the ability to do it implicitly or essentially with terms used by the court in both Davis and in this case as a

[00:16:27] Speaker 00:
But we have a non-formal way of doing what's required.

[00:16:31] Speaker 02:
What about Gudinus?

[00:16:32] Speaker 02:
I mean, does Gudinus foreclose your argument here?

[00:16:35] Speaker 02:
Gudinus says, in a recent non-questioner's opinion, we held that Bond Brode do not require the board to make explicit findings as to 3.156b when determining the effective date.

[00:16:46] Speaker 02:
And we agree with the court, that's the Jordan case, that the board need not explicitly determine whether a claim constitutes new and material evidence relating to a previous claim.

[00:16:55] Speaker 02:
So does that foreclose your argument here?

[00:16:58] Speaker 00:
I do not believe it does.

[00:16:59] Speaker 00:
Why not?

[00:16:59] Speaker 00:
I unfortunately was counsel in Gudinus.

[00:17:02] Speaker 00:
And I believe that that decision was predicated on a different set of facts about what triggered that obligation.

[00:17:11] Speaker 00:
Here, we have a favorable finding by the board that new and material evidence was received.

[00:17:17] Speaker 00:
Now, they said it was only the Social Security records and not the TDIU.

[00:17:21] Speaker 00:
But then Judge Bartley said, no, they were wrong.

[00:17:24] Speaker 00:
The TDIU was new in material evidence.

[00:17:27] Speaker 00:
The question for this panel is, upon receipt, what is the obligation of the secretary?

[00:17:35] Speaker 00:
Not the board.

[00:17:36] Speaker 00:
The board only reviews decisions.

[00:17:40] Speaker 00:
They're an appellate body.

[00:17:41] Speaker 00:
There has to be a determination under Bond and Barad by the secretary in the first instance.

[00:17:47] Speaker 03:
But again, Mr. Garner, does this case turn entirely one way or the other

[00:17:52] Speaker 03:
on the 2013 document, the 2014 document, and bond and barrage?

[00:18:02] Speaker 00:
My difficulty in responding to that is that certainly the application of law to fact answer is yes.

[00:18:10] Speaker 00:
But in my view, or at least I've been told repeatedly for decades, that I don't get to argue application of law to fact to this court.

[00:18:19] Speaker 00:
that I can only argue what the law says or doesn't say, that this court is obligated to interpret statutes and regulations by mandate from Congress.

[00:18:30] Speaker 00:
I'm saying to this panel, this court has done it not once, but twice.

[00:18:35] Speaker 00:
And when they did it, they did it unequivocally.

[00:18:38] Speaker 00:
They had no implicit exceptions.

[00:18:42] Speaker 00:
And they said that that's the obligation of the VA, not the obligation of the board.

[00:18:48] Speaker 00:
So I'm asking this court to read Bond and Barad as interpretations of the law and find, as a matter of law, the decision made in this court is contrary to that precedent.

[00:19:03] Speaker 00:
I see I'm way over my time.

[00:19:05] Speaker 00:
If there's any, OK.

[00:19:07] Speaker 02:
Thank you very much, Your Honor.

[00:19:12] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:19:14] Speaker 04:
I'll start with counsel's last point, which is that this court doesn't have jurisdiction to review harmless error determinations like those raised here.

[00:19:23] Speaker 04:
At the Veterans Court, the only thing that the Veterans Court did was cite 3.156b, cite the case bond and borough in full, direct quotation, and then apply the law to the fact that the case.

[00:19:36] Speaker 03:
Let me ask you one question, a little different from the jurisdictional argument.

[00:19:41] Speaker 03:
In Mr. Pickett's brief, he argues at pages 14 through 15 of his opening brief that his claim is about the maximum benefit sought.

[00:19:58] Speaker 03:
And then he continues at pages 12 through 17 of his reply brief

[00:20:04] Speaker 03:
indicating that there's no limitation on the scope of the claim.

[00:20:09] Speaker 03:
You're familiar with that.

[00:20:10] Speaker 03:
What is the government's response to that?

[00:20:12] Speaker 03:
Because he says in his reply brief that the government doesn't respond to this scope of the claim issue, I'll call it by way of shorthand.

[00:20:20] Speaker 03:
So what is the government's response today to that argument?

[00:20:24] Speaker 04:
The government's response is assuming that his claim from 2004 was still active when he submitted his

[00:20:31] Speaker 04:
September 2011 form, which that's the form that he alleges constitutes new and material evidence.

[00:20:38] Speaker 04:
So say the 2004 claim.

[00:20:40] Speaker 04:
was extended somehow and was live and active all the way to the 2011 forum that he submitted.

[00:20:47] Speaker 04:
Well, that claim ended after the government's January 2013 and April 2014 decisions that the veteran never appealed.

[00:20:56] Speaker 04:
So even assuming there was this active claim, which the Veterans Court did, it gave the veteran the benefit of the doubt and said the January 2013 claim, considered whether it related all the way back to April 2004,

[00:21:08] Speaker 04:
And the April 2014 decision considered the January 2011 claim as it relates back to 2004.

[00:21:15] Speaker 04:
So even assuming it was active this whole time and he had this

[00:21:19] Speaker 04:
very long claim stream.

[00:21:21] Speaker 04:
He never appealed either of the government's determinations, so they became final.

[00:21:27] Speaker 02:
And so in this case, now, in 2000... Isn't it his view that they're not final because the regulation wasn't satisfied?

[00:21:34] Speaker 04:
That's correct.

[00:21:35] Speaker 04:
If the regulation is satisfied, though, to Your Honor's question,

[00:21:38] Speaker 04:
the claim stream ended.

[00:21:40] Speaker 04:
And so that's the end of this case.

[00:21:42] Speaker 04:
And to Judge Stoll's question, the claim stream did end because the board did, in fact, comply with 3.156b.

[00:21:51] Speaker 04:
The only thing that 3.156b and bond and brew require is an express determination as to whether new and material evidence relates back to the open claim.

[00:22:01] Speaker 03:
You would say that compliance was accomplished by April of 2014.

[00:22:06] Speaker 04:
Absolutely.

[00:22:07] Speaker 02:
Perhaps by the January.

[00:22:08] Speaker 03:
That's the date you would hang your hat on.

[00:22:10] Speaker 02:
For sure, Your Honor.

[00:22:11] Speaker 02:
And your basis for that is the listing of the evidence, the listing of the evidence considered by the board.

[00:22:17] Speaker 04:
In part, it's the listing of the board.

[00:22:19] Speaker 04:
It's the board's note that they're considering an ongoing claim.

[00:22:23] Speaker 04:
So that shows different from bond, that it's not considering a new claim.

[00:22:26] Speaker 04:
It's considering an ongoing claim.

[00:22:28] Speaker 04:
So it's that, what Your Honor said, the listing of it.

[00:22:31] Speaker 04:
It's also the determination on the merits.

[00:22:33] Speaker 04:
It cites the exact language that's raised in the September 2011 form.

[00:22:38] Speaker 04:
And so there's clearly a determination

[00:22:40] Speaker 04:
on that form.

[00:22:42] Speaker 04:
And then it clearly denies that in both the January and the April determinations.

[00:22:47] Speaker 02:
Is there something that should have been done by the secretary before then?

[00:22:51] Speaker 02:
Because what I'm hearing today is that it's not just the board.

[00:22:54] Speaker 02:
The secretary has to have made some sort of determination.

[00:22:58] Speaker 04:
Your Honor, there's really no authority to support that argument.

[00:23:00] Speaker 04:
I would note, though, that the January 2013 and the April 2014 were rating decisions that were made by the regional office.

[00:23:07] Speaker 04:
So it's not as though this just happened on appeal.

[00:23:11] Speaker 04:
There were actual rating decisions that were made.

[00:23:14] Speaker 04:
The argument here is that bond requires something more.

[00:23:17] Speaker 04:
And the government agrees with the appellant here that this system, 3.156B, is supposed to be pro-claimant.

[00:23:26] Speaker 04:
And that's exactly what it is.

[00:23:27] Speaker 04:
Here, the Veterans Court assumed all of the facts to be in the veterans' favor.

[00:23:32] Speaker 04:
It said, let's assume this claim stream was going

[00:23:35] Speaker 04:
all the way back to 2004 up until 2011.

[00:23:39] Speaker 04:
And then the Veterans Court said, but at some point, the claim stream has to end.

[00:23:43] Speaker 04:
And of course, it ended when there was no appeal of either the January or the April decision.

[00:23:48] Speaker 04:
And so now when we're in 2017, there's just simply nothing to relate back to for the effective date.

[00:23:59] Speaker 01:
Do you agree that they don't need to explain whether the evidence is new and material if they consider the evidence in the mayors?

[00:24:05] Speaker 01:
Do you kind of agree with that?

[00:24:06] Speaker 01:
Yes, Your Honor.

[00:24:07] Speaker 04:
And I think the reason for that is in bond, for example, the court, or excuse me, the VA, didn't consider it was new and material.

[00:24:16] Speaker 04:
And the effect on the veteran was that his effective date couldn't relate back to the active claim stream.

[00:24:24] Speaker 04:
So they only considered it for a new claim.

[00:24:27] Speaker 04:
Here, on the other hand, the VA did in fact consider whether it related back to the open claim stream.

[00:24:35] Speaker 04:
And so there wasn't a similar prejudice to the veteran here as there was in bond because the new effective date wasn't the new claim.

[00:24:43] Speaker 04:
So yes, it's important that the VA consider whether there's an open claim stream and consider whether the new material evidence relates to that.

[00:24:53] Speaker 04:
It's exactly what happened here in this case.

[00:24:56] Speaker 01:
One thing that I heard from Mr. Carpenter was that there were some magic words that were needed.

[00:25:06] Speaker 01:
Can you respond to that for me?

[00:25:08] Speaker 04:
Yes, Your Honor.

[00:25:09] Speaker 04:
I would first point the court to the statute, which doesn't require any sort of magic words.

[00:25:14] Speaker 04:
I would also point the court to the Bond and the Breaux decisions, which also don't require magic words.

[00:25:19] Speaker 04:
What is clear in both of those cases interpreting 3.156b is that there has to be a determination on the alleged new and material evidence.

[00:25:30] Speaker 04:
And so if, like in broad, were the VA actually never considered, in writing at least, the new and material evidence, then this court said, we're not going to implicitly, we're not going to presume that the VA considered it.

[00:25:44] Speaker 04:
There actually has to be a determination.

[00:25:46] Speaker 04:
In this case, however, we have two determinations.

[00:25:49] Speaker 04:
We have the January 2013 and the April 2014.

[00:25:52] Speaker 04:
So no, there certainly doesn't have to be magic words.

[00:25:55] Speaker 04:
There does have to be some substantive analysis or at least consideration of the evidence that's submitted.

[00:26:03] Speaker 02:
Did both of the opinions have a substantive analysis?

[00:26:05] Speaker 02:
You said the first one did.

[00:26:06] Speaker 02:
Did the second one as well?

[00:26:07] Speaker 04:
The April 2014, yes.

[00:26:09] Speaker 04:
And it also spoke to the same thing in reference to January 2011.

[00:26:14] Speaker 04:
Just to give the veteran the full benefit of the doubt, to Judge Schall's question, sure, we can rely just on the April 2014 one, because it addressed September 2011 expressly.

[00:26:24] Speaker 04:
But actually, both of them do.

[00:26:26] Speaker 04:
And neither of them were appealed.

[00:26:27] Speaker 04:
And so that's when the claim stream ended.

[00:26:30] Speaker 04:
So we would submit that this court doesn't need to even get to the mayor's determination, because there's that jurisdictional argument, too.

[00:26:41] Speaker 04:
The court here, the Veterans Court,

[00:26:44] Speaker 04:
analyzed and interpret 3.156 B.

[00:26:47] Speaker 04:
It simply said 3.156b applies, which was undisputed by both parties.

[00:26:52] Speaker 02:
So you know you're talking about the jurisdiction issue.

[00:26:54] Speaker 02:
But it does seem as if on appeal here we're being asked to interpret 3.156 and see if it requires special words beyond just identifying the evidence and treating the evidence.

[00:27:06] Speaker 02:
That would be an interpretation, right?

[00:27:08] Speaker 04:
That would be, Your Honor.

[00:27:09] Speaker 04:
But I don't think that the court needs to get there because the magic words argument wasn't

[00:27:14] Speaker 04:
argued at the Veterans Court.

[00:27:16] Speaker 04:
That's, of course, appellant's argument now.

[00:27:18] Speaker 03:
But also, Ms.

[00:27:19] Speaker 03:
Ackers, what about the fact that in the colloquy that the court had with Mr. Carpenter, there seemed to be a lot of discussion about bond and barrage.

[00:27:27] Speaker 03:
Doesn't that suggest that we have a legal questionnaire in terms of how you correctly interpret

[00:27:34] Speaker 03:
those two decisions and what they require and what, if anything, Gudinus subsequent has added to that.

[00:27:42] Speaker 03:
So aren't we really, as evidenced by the discussion we've had here today, faced with a legal issue in terms of what those cases say?

[00:27:51] Speaker 04:
I would say, Your Honor, that it is first incumbent upon the court to look at what the Veterans Court did, which of course would be the jurisdictional hook here.

[00:28:00] Speaker 04:
The Veterans Court didn't interpret 3.156b.

[00:28:03] Speaker 04:
And so if the Veterans Court didn't make the interpretation, then there's really no regulatory interpretation for this court to review.

[00:28:09] Speaker 02:
Did the court mention Bond and Burrough?

[00:28:11] Speaker 02:
Yes, Your Honor.

[00:28:12] Speaker 02:
So they did look at that if we're being asked to see what the correct reading of it is.

[00:28:16] Speaker 02:
Isn't that a legal question?

[00:28:18] Speaker 04:
The court, Your Honor, cited Bond and Burrough and quoted

[00:28:21] Speaker 04:
the Davis case that we're going to argue in a moment.

[00:28:24] Speaker 04:
Just one sentence.

[00:28:25] Speaker 04:
It says 3.156 requires an express determination.

[00:28:28] Speaker 04:
It was an exact quote.

[00:28:30] Speaker 04:
And then it applied that law.

[00:28:32] Speaker 04:
It didn't interpret, but it applied that law to the facts of this case to ultimately conclude

[00:28:38] Speaker 04:
that it was fulfilled.

[00:28:40] Speaker 04:
And so that's a direct application of law to fact.

[00:28:44] Speaker 04:
But even if the court were to reach the merits of this case, 3.156b doesn't require magic words.

[00:28:50] Speaker 04:
It doesn't require anything more than an express determination as to the new and material evidence.

[00:28:56] Speaker 04:
And that's exactly what the Veterans Court did here, so there was no error.

[00:29:00] Speaker 02:
Thank you.

[00:29:02] Speaker 02:
Thank you.

[00:29:02] Speaker 02:
Mr. Carpenter, I'll give you three minutes if you need it.

[00:29:08] Speaker 00:
I was a little confused by the government's reference to a statute.

[00:29:12] Speaker 00:
I'm not aware of any statute in this case.

[00:29:15] Speaker 00:
There is only a regulation.

[00:29:16] Speaker 00:
And that regulation, and she may have just mispoken.

[00:29:19] Speaker 00:
But I think it's critical to remember that we're only dealing with a regulation here.

[00:29:25] Speaker 00:
And it's also important that when the VA amended this regulation, it gave subsection B a new title.

[00:29:33] Speaker 00:
And that new title is pending claim.

[00:29:38] Speaker 00:
So the title informs us that the inquiry under B is whether or not there is a pending claim.

[00:29:46] Speaker 00:
And the last phrase of the regulation says, will be considered as having been filed in connection with the claim, which was pending at the beginning of the appeal period.

[00:29:58] Speaker 00:
Therefore, the magic words are, and the inquiry is, was there or wasn't there a pending claim?

[00:30:07] Speaker 00:
And the only way, as instructed by Bond and Barad, to make that determination is to determine whether new and material evidence has been received.

[00:30:17] Speaker 00:
That's not an issue in this case.

[00:30:19] Speaker 00:
The board, even on one leg, said there was.

[00:30:24] Speaker 00:
But once they made that favorable finding, then it was up to the secretary to determine whether or not

[00:30:30] Speaker 00:
That new and material evidence related back.

[00:30:34] Speaker 00:
That is the language of bond.

[00:30:37] Speaker 00:
That is the reinforcement in Barad, which says, until then.

[00:30:40] Speaker 02:
How would that change the outcome here?

[00:30:42] Speaker 00:
I'm sorry, Your Honor.

[00:30:43] Speaker 02:
How would that change the outcome here, if there was an express statement by the Secretary saying, yes, I agree, it's new and material.

[00:30:49] Speaker 00:
Because it's appealable, Your Honor.

[00:30:52] Speaker 02:
Well, the April of 2014 decision was appealable also.

[00:30:57] Speaker 00:
Yes, Your Honor, but at that point,

[00:30:59] Speaker 00:
There hadn't been the new and material evidence submitted.

[00:31:04] Speaker 00:
It's the submission after the decision within the specified framework of either within the first year.

[00:31:11] Speaker 03:
But wasn't the new and material evidence was prior to the 2014 decision?

[00:31:15] Speaker 03:
Because the new and material evidence is the TDIU form, isn't it?

[00:31:20] Speaker 02:
Right.

[00:31:22] Speaker 00:
But that's part of what informs the whole history of this claim.

[00:31:27] Speaker 00:
and that the issue was raised as part of the appeal by Mr. Pickett of the original rating assigned for his CAD.

[00:31:39] Speaker 00:
And yes, there were decisions in the interim that denied TDIU.

[00:31:45] Speaker 00:
But the question was, when he finally got counsel and counsel submitted that TDIU application, was that or wasn't that new and material evidence?

[00:31:55] Speaker 01:
So you're not arguing that there would have been a different outcome other than the claim would have been remained pending?

[00:32:00] Speaker 01:
Is that even what you're arguing?

[00:32:01] Speaker 01:
I'm trying to just sum up.

[00:32:02] Speaker 00:
Well, yes, Your Honor, because if the claim is pending from 2004, then it must be adjudicated as to whether or not there was entitlement to the maximum rating available under law

[00:32:15] Speaker 00:
from 2004 that would cover both PTSD and would cover the CAD, but most importantly, would cover the issue of TDIU as it relates to the combined effects of both.

[00:32:32] Speaker 02:
Mr. Carpenter, thank you for your time.

[00:32:35] Speaker 02:
And thank you both, counsel.

[00:32:37] Speaker 02:
I hope the case is submitted.