[00:00:00] Speaker 01:
Last case this morning is Betty Spence versus the Department of Veterans Affairs, 2022-1105.

[00:00:06] Speaker 01:
Mr. Joe Hopkins, is it?

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

[00:00:13] Speaker 02:
Good morning, and may it please the Court.

[00:00:14] Speaker 02:
This appeal is wrapped up with many complex issues of NEMA effective dates and notice.

[00:00:20] Speaker 02:
But for the purposes of this Court's review, it is limited specifically and simply to the Veterans Court exceeding its jurisdiction

[00:00:30] Speaker 02:
in this court's decision in Tadlock when it made de novo factual findings about an August 1985 VA decision.

[00:00:39] Speaker 02:
This is important because if that decision was not final, which was... This is about a hot condition, isn't it?

[00:00:45] Speaker 01:
Yes, Your Honor.

[00:00:47] Speaker 01:
And that was finally decided and not appealed.

[00:00:51] Speaker 02:
That was determined in an earlier April 1985 decision.

[00:00:56] Speaker 02:
Yes, Your Honor.

[00:00:57] Speaker 02:
But what Mrs. Spence argues is that

[00:00:59] Speaker 02:
The August 1985 decision remained pending because notice was never given to the veteran's representative, which was required by regulation.

[00:01:09] Speaker 02:
And that claim remained pending.

[00:01:12] Speaker 02:
This hearing loss claim remained pending.

[00:01:14] Speaker 00:
Let's assume that.

[00:01:16] Speaker 00:
Let's assume there was no notice and that second claim, not dealing with heart condition but dealing with hearing loss, remained pending.

[00:01:25] Speaker 00:
What else are you saying that was the fact finding that had to have been done by the board with regard to that claim?

[00:01:32] Speaker 02:
So the initial fact finding, Your Honor, is that whether the claim was notice was provided and whether it remained pending.

[00:01:39] Speaker 00:
Let's take notice off the table.

[00:01:40] Speaker 00:
Let's assume it was still open.

[00:01:42] Speaker 02:
OK, Your Honor.

[00:01:42] Speaker 02:
Then the next key fact, because under the Nehmer effective date rules, and I'm looking at 38 CFR 3.816 C2,

[00:01:53] Speaker 02:
If a claim for a covered herbicide-related disease was pending on or after May 3rd, 1989, or was received between that date and the date that the condition, the disease, was later added, which in this case was 2010, then the effective date is the date of that pending claim.

[00:02:10] Speaker 02:
And so if the hearing loss claim was still pending in 1989, which there's no evidence, and that's one of the facts, that when was that claim finally decided and notice provided to the veteran

[00:02:22] Speaker 02:
and his representative.

[00:02:24] Speaker 00:
But it says for the same disease, right?

[00:02:27] Speaker 00:
I mean, I guess you've just got to explain to me where it is here that he had the heart condition, finally adjudicated, end of story, and how a claim for hearing loss gets you into this Neymar thing.

[00:02:42] Speaker 00:
I'm assuming it's open.

[00:02:44] Speaker 00:
Let's take that off the table.

[00:02:45] Speaker 02:
Yes, Your Honor.

[00:02:46] Speaker 02:
So one of the issues that comes up, and one of the factual issues that comes up, and if you look on appendix page 5,

[00:02:52] Speaker 02:
But note two, it is unclear to the court when VA received evidence of a current diagnosis of coronary artery disease, which is one form of ischemic heart disease, which is the presumptive disease under the Nehmer.

[00:03:09] Speaker 02:
When, if a claim is pending and the VA has evidence of a diagnosis, then that claim becomes the presumptive condition, the presumptive disease attaches to that pending claim.

[00:03:22] Speaker 00:
Has notice of that claim when and how?

[00:03:26] Speaker 00:
It had notice, it clearly had notice of the claim of heart disease.

[00:03:29] Speaker 00:
It rejected that claim and that claim was never appealed.

[00:03:33] Speaker 00:
So it could be a claim for anything.

[00:03:37] Speaker 00:
I mean, hearing loss is,

[00:03:38] Speaker 02:
Yes, Your Honor.

[00:03:40] Speaker 00:
And it can bring anything in?

[00:03:42] Speaker 02:
Yes, Your Honor.

[00:03:42] Speaker 02:
Under the Nehmer stipulated agreement, which was agreed to by the VA in the class action lawsuit, which, by the way, is still being litigated.

[00:03:52] Speaker 02:
And just a year or two ago, the district court issued a new order on that.

[00:03:59] Speaker 02:
Any claim that's pending and at the same time, VA receives evidence of one of the covered herbicide diseases.

[00:04:07] Speaker 02:
and it falls within those dates prior to whenever it's added, then it becomes the effective date for that covered herbicide disease attaches to the same pending claim, whether it was in 1984, as in this case, or as the board is already in... But it was completely unrelated to the heart condition.

[00:04:26] Speaker 00:
Yes, Your Honor.

[00:04:26] Speaker 00:
There's all this paper about NIMAR, and I've got something which I think is the guidance, the training guide,

[00:04:34] Speaker 00:
And on page 19 of my version, it says, under NEMAR, the RO decision is treated as having denied a claim for IHD in that case, if IHD was coded in the rating decision or should have been coded in the rating decision.

[00:04:52] Speaker 00:
So would that mean in our case that the heart decision had to have been coded in the rating decision of hearing loss?

[00:05:04] Speaker 00:
or should have been coded in that rating decision?

[00:05:08] Speaker 02:
No, Your Honor, because again, the hearing loss claim remained pending after 1989.

[00:05:15] Speaker 02:
And after 1989, VA received additional documents as part of this 1996 claim, which is the current effective date, that included additional diagnoses of ischemic heart disease.

[00:05:28] Speaker 00:
There were, I think, two myocardial... So as long as any claim was pending on anything excluding heart disease, because we know heart disease was already denied,

[00:05:39] Speaker 00:
you still get the benefit of heart disease occurring afterwards.

[00:05:42] Speaker 00:
That is subsumed into the claim of hearing loss.

[00:05:45] Speaker 00:
I'm just trying to understand.

[00:05:46] Speaker 00:
Yes, Your Honor.

[00:05:47] Speaker 00:
No.

[00:05:47] Speaker 02:
Well, if we look at what the VA actually did in this case.

[00:05:50] Speaker 04:
But can you just say a clean answer, yes or no, to Judge Prost's question?

[00:05:54] Speaker 02:
The answer is any time.

[00:05:56] Speaker 04:
It's just yes or no.

[00:05:59] Speaker 04:
The claim is filed for an ingrown toenail and asking for service connection.

[00:06:04] Speaker 04:
And then that claim is pending for five years.

[00:06:07] Speaker 04:
During the pendency of that claim, there is medical evidence that develops in the veteran's medical records at the VA that indisputably establishes that he had some kind of service-connected heart disease.

[00:06:25] Speaker 04:
Does he get the, does he get, is he entitled to

[00:06:31] Speaker 04:
have his ingrown toenail claim construed as a heart disease claim too, and get the effective date of the ingrown toenail claim as the effective date of service-connected benefits for heart disease?

[00:06:44] Speaker 02:
Yes, Your Honor, under NEMA.

[00:06:45] Speaker 04:
That's what we were looking for, a yes or a no.

[00:06:48] Speaker 04:
And is that under NEMA specifically, or is that just general VA practice with respect to claims during this era that

[00:06:56] Speaker 04:
any claim that's pending is construed as not only being for the very claim that is filed for, but also any other claim that exists based on reviewing the veteran's records?

[00:07:09] Speaker 02:
Yes, to both, Your Honor.

[00:07:11] Speaker 04:
However, I would... Okay, now we're getting somewhere.

[00:07:13] Speaker 04:
Yes, Your Honor.

[00:07:14] Speaker 04:
We need some clarity because I found the blue brief to be rather undeveloped into exactly what you were hunting for.

[00:07:20] Speaker 02:
Well, and that's...

[00:07:22] Speaker 02:
The reason it was not as thoroughly developed, John, is because, again, the Veterans Court performed de novo fact finding, and that's the real issue.

[00:07:31] Speaker 04:
So what is specifically the fact finding you think the Veterans Court did that it was not supposed to do?

[00:07:37] Speaker 02:
Well, the Veterans Court addressed the August 1985 R.O.

[00:07:42] Speaker 02:
decision, which was never mentioned.

[00:07:43] Speaker 04:
What is the fact finding?

[00:07:45] Speaker 02:
Just say it.

[00:07:46] Speaker 02:
That the August 1985 R.O.

[00:07:48] Speaker 02:
decision finally

[00:07:50] Speaker 02:
what notice was provided.

[00:07:52] Speaker 02:
Where did the Veterans Court say that?

[00:07:56] Speaker 02:
So the August 85th, I'm sorry, Your Honor.

[00:08:00] Speaker 04:
Where did the Veterans Court say the August 1985 RO decision is final?

[00:08:08] Speaker 02:
Let me see it say that.

[00:08:11] Speaker 02:
There is no dispute.

[00:08:12] Speaker 02:
I'm looking at Appendix 5, Your Honor.

[00:08:14] Speaker 02:
There's no dispute regarding notification of, I'm sorry, that says April.

[00:08:18] Speaker 02:
Let me rephrase my answer to that question.

[00:08:21] Speaker 02:
The Veterans Court made adjudicated findings of fact in the August 85 rating decision, again looking at appendix 5.

[00:08:29] Speaker 02:
The RO adjudicated only the matter of hearing loss.

[00:08:34] Speaker 02:
And there is an implicit finding of fact that that claim never remained pending.

[00:08:44] Speaker 02:
And that's really the biggest issue that Mrs. Spence has.

[00:08:47] Speaker 02:
And the issue that she presented to the Veterans Court was that that claim remained pending.

[00:08:52] Speaker 04:
I don't understand.

[00:08:54] Speaker 04:
What am I supposed to read in this veteran court's opinion that tells me that they made an implicit fact finding that the 1985 August RO decision was final?

[00:09:09] Speaker 02:
Because in order to affirm the board's decision,

[00:09:13] Speaker 02:
That's the only way that they can do that.

[00:09:15] Speaker 04:
Here's the way I would frame it, if I were you.

[00:09:19] Speaker 04:
The brief to the Veterans Court said the August 1985 RO decision was never final.

[00:09:25] Speaker 04:
It was never final because a copy of it was never sent to Spence's representative.

[00:09:30] Speaker 04:
And under the rules, it can only become final when that RO decision is sent to the representative.

[00:09:37] Speaker 04:
That didn't happen here.

[00:09:39] Speaker 04:
Therefore, the 85 claim is still open and the Veterans Court needs to understand that in order for me to still have a pending claim lurking so that I can attach a heart disease claim onto that lurking claim.

[00:09:53] Speaker 04:
The Veterans Court then did not answer that question.

[00:09:58] Speaker 04:
you pose the question, is this August 85 decision final or not?

[00:10:01] Speaker 04:
And the Veterans Court never answered it.

[00:10:03] Speaker 04:
And so for that reason, this needs to go back because there needs to be an actual decision on the question that you actually raised that was never answered.

[00:10:13] Speaker 02:
Yes, Your Honor.

[00:10:14] Speaker 02:
And I agree 100% with that.

[00:10:16] Speaker 02:
And that is certainly... I'm just trying to figure out, is that what you argued?

[00:10:21] Speaker 02:
That is, yes, Your Honor.

[00:10:23] Speaker 02:
I think that that's a more correct way of saying, as opposed to trying to

[00:10:29] Speaker 02:
ferret out an implicit finding that the Veterans Court didn't really address it.

[00:10:34] Speaker 02:
And our point was that the only way to affirm the board's decision was to find that that claim did not remain pending.

[00:10:41] Speaker 01:
Did the April 1985 decision deny the hot condition and wasn't notice of that given to the representative?

[00:10:54] Speaker 02:
It denied a heart condition, your honor, but as we mentioned in our briefs in 1996, additional records were received that identified at least three additional ischemic heart disease diagnoses that could form the basis of an earlier effective date.

[00:11:12] Speaker 02:
And if you look at what the VA actually did here, they granted a 1996 effective date in the face of the April 1985 decision.

[00:11:23] Speaker 02:
And if that was the only time they could have adjudicated that heart disease claim, then there would be no basis for a 1996 effective date.

[00:11:35] Speaker 02:
And that's a correct interpretation because additional diagnoses were received subsequent to the April 1985 decision.

[00:11:46] Speaker 04:
So hypothetically, if

[00:11:49] Speaker 04:
The April 85 decision said, I looked at all your medical records and there's no service connection for a heart disease, sorry.

[00:11:59] Speaker 04:
And then one day later,

[00:12:02] Speaker 04:
the VA sends a second RO decision on a copending hearing loss claim and says, no, you don't deserve any benefits for hearing loss either, but then fails to send a notice of that second RO decision that was only one day later to Spence's representative.

[00:12:25] Speaker 04:
Are you saying that embedded in that second decision is

[00:12:31] Speaker 04:
second-own independent denial of the heart disease condition because that claim is always in any decision that the RO subsequently makes after the first formal decision in which there was an actual expressed claim of heart disease?

[00:12:48] Speaker 02:
Not when the decision was sent one day later, but when notice actually reaches, legally sufficient notice reaches, and it extends beyond 1989.

[00:12:59] Speaker 04:
Let me change the hypothetical.

[00:13:01] Speaker 04:
One day later, there's a denial on hearing loss and that denial does get sent to Spencer's representative.

[00:13:08] Speaker 04:
Are you telling me that decision one with the express claim of heart disease getting denied is a denial on heart disease?

[00:13:16] Speaker 04:
And then the second decision, which was formally on denial for hearing loss benefits is inherently also its own second independent separate decision denying a heart disease claim?

[00:13:30] Speaker 02:
No, Your Honor.

[00:13:31] Speaker 02:
I'm not suggesting that at all.

[00:13:32] Speaker 04:
I'm suggesting that because the claim... Okay, so if the August 85 decision did in fact get sent to the representative, that was a denial on hearing loss.

[00:13:45] Speaker 04:
We know that.

[00:13:46] Speaker 04:
Was it also inherently a separate denial for a heart disease claim because there's always a heart disease claim?

[00:13:57] Speaker 02:
No, Your Honor.

[00:13:59] Speaker 02:
I don't read the regulations in the case law to say that.

[00:14:03] Speaker 02:
Again, the emphasis is that because it remained pending,

[00:14:07] Speaker 02:
And while it was pending, additional records were received that identified covered herbicide diseases that those covered herbicide diseases became part of that pending claim.

[00:14:17] Speaker 02:
And that's very clear what the regulations were.

[00:14:20] Speaker 04:
When did the medical records finally establish everything with respect to service connection for heart disease?

[00:14:26] Speaker 02:
We don't know, Your Honor.

[00:14:28] Speaker 02:
I think based on what the record shows that with the 1996 claim,

[00:14:33] Speaker 02:
that there were additional.

[00:14:34] Speaker 02:
And there was some fact finding by the RO that alludes to that.

[00:14:38] Speaker 02:
But again, that question was never answered by the board.

[00:14:40] Speaker 02:
And I really want to emphasize, footnote two is that the court itself was unclear when the evidence was received by VA.

[00:14:49] Speaker 00:
But can we go back to appendix five and what the CAVC actually said?

[00:14:56] Speaker 00:
The appellant, so it talks about its understanding of the appellant's argument.

[00:15:00] Speaker 00:
Tell me if they got it wrong.

[00:15:01] Speaker 00:
The appellant argues that footnote one of Neymar supports her contention that the august adjudication of the veteran's hearing loss constituted a denial of the coronary artery disease claim and is still pending.

[00:15:17] Speaker 00:
Well, that was her contention.

[00:15:18] Speaker 00:
Is that your contention that that

[00:15:22] Speaker 00:
August 1985 adjudication constitutes a denial of the coronary artery disease claim, and therefore because it wasn't served, it was never final.

[00:15:33] Speaker 02:
Not exactly, Your Honor.

[00:15:34] Speaker 00:
And as Judge Chen... Did she argue that or not?

[00:15:37] Speaker 02:
She did not, Your Honor.

[00:15:38] Speaker 02:
The argument... I think it's a little... Obviously, as I started, it's very complex issues.

[00:15:46] Speaker 02:
But I think the argument that Mrs. Spence presented to the Veterans Court was, as I explained in response to Judge Chen's questions, that if notice had been given in August of 85,

[00:16:00] Speaker 02:
then it just completes that 84 claim that they had deferred the hearing loss for a few months because they needed an exam.

[00:16:06] Speaker 02:
And so that would have closed it out.

[00:16:08] Speaker 02:
But because it remained pending, when notice was eventually given, which again we don't know based on the findings of the board,

[00:16:16] Speaker 02:
I mean we can go and look at the record, but the board didn't make that factual finding.

[00:16:20] Speaker 02:
When that notice occurred, which was after 1996 at least, and there was additional records showing a diagnosis of covered herbicide diseases, then it became a denial of those covered herbicide diseases.

[00:16:34] Speaker 00:
So you're saying under NEMAR, if they're covered herbicide diseases

[00:16:39] Speaker 00:
whatever time, any time in the 90s, any time in the 2000s.

[00:16:44] Speaker 00:
But there's some claim that was pending for, as Judge Shenn said, an ingrown toenail.

[00:16:50] Speaker 00:
And somehow that claim about lost in the shuffle is pending.

[00:16:53] Speaker 00:
The appellant, the plaintiff, is going to be able to go back to any pending claim about anything.

[00:17:00] Speaker 02:
Absolutely, Your Honor.

[00:17:01] Speaker 00:
And show me where Neymar tells us that that's the case.

[00:17:04] Speaker 02:
So again, pointing back to three,

[00:17:07] Speaker 02:
38 CFR 3.816.

[00:17:09] Speaker 02:
So number one, C1 deals with a very short period of time in the 80s that rarely comes up.

[00:17:21] Speaker 02:
But C2, and I don't have in my notes here, I don't know if I quoted exactly, but I think I got most of it.

[00:17:30] Speaker 02:
If a claim for a covered herbicide related disease was pending,

[00:17:33] Speaker 02:
Honor after May 3rd, 1989.

[00:17:36] Speaker 00:
C2 has got different parts to it.

[00:17:39] Speaker 00:
Well, it's got little i and double i. Where are we talking about?

[00:17:44] Speaker 02:
If you'll give me just one second, Geron, I'll pull it up on my phone.

[00:17:48] Speaker 04:
It's at Blue Brief 9 and 10, if that helps.

[00:17:52] Speaker 04:
Here we go.

[00:17:54] Speaker 02:
So looking at C2, your Honor, if the class members claim, and this is the Nehmer class members,

[00:17:59] Speaker 02:
for disability for the covered herbicide related disease was either pending before VA on May 3rd, 1989 or was received between that date and the effective date.

[00:18:10] Speaker 02:
So we have a claim that was either pending or was decided after May 3rd, 1989.

[00:18:17] Speaker 01:
And this may not have been because of the 1985 decision.

[00:18:24] Speaker 02:
Right, Your Honor.

[00:18:25] Speaker 02:
And that's the question.

[00:18:26] Speaker 02:
Was that 1985 decision, the August 85 decision on the hearing loss, was notice provided so that the decision became final?

[00:18:34] Speaker 00:
Well, it says the claim for disability compensation for the covered herbicide disease.

[00:18:39] Speaker 00:
That wasn't hearing loss.

[00:18:41] Speaker 02:
And if you look on the brief...

[00:18:45] Speaker 00:
Do you agree that the claim we're talking about in this first sentence does not include the August 1985 claim for hearing loss?

[00:18:55] Speaker 02:
It was, Your Honor, but as the Nehmer stipulated agreement says.

[00:19:00] Speaker 00:
So the statute doesn't get you there, right?

[00:19:01] Speaker 02:
Well, the regulation does not in so many words, Your Honor.

[00:19:05] Speaker 02:
But again, the training guidance, the stipulated agreement under the class action, and on page 10 of our opening brief,

[00:19:13] Speaker 02:
uh... sixty eight federal register at fifty nine six seven uh... about long-standing via policy yes yes your honor so via procedural manual manuals provides that when disability compensation is claimed they must make a formal decision as to each disability that was claimed or noted in the records and that's where we get the the idea that the herbicide related disease is part of a pending claim if it's noted in the records

[00:19:42] Speaker 00:
But I guess my question, it says it was either claimed by the veteran or noted in the veteran's records.

[00:19:51] Speaker 00:
And what you're telling us that noted in the veteran's records, in your view, means anytime in the coming 20 years, as long as that case was open.

[00:19:59] Speaker 02:
Yes, Your Honor.

[00:20:01] Speaker 00:
What tells us that that's true?

[00:20:03] Speaker 00:
Why can't we read that or noted in the veteran's records at the time of the claim was made?

[00:20:09] Speaker 02:
because the VA is not permitted to issue a decision that ignores 20 years of records if they delay providing notice.

[00:20:20] Speaker 02:
The notice provisions 3.103, 5107, all require that they make determinations based on the entire record before the VA

[00:20:31] Speaker 02:
And that applies every single law, even when the law changes throughout the years.

[00:20:37] Speaker 02:
And so when notice is delayed for one year, 20 years, 50 years... Then everything that's going on with the veteran gets subsequent to that.

[00:20:49] Speaker 02:
Yes, Your Honor, absolutely.

[00:20:50] Speaker 00:
Gets retroactive application.

[00:20:51] Speaker 02:
Well, all of the new rules

[00:20:54] Speaker 02:
subject to whatever precedent would apply, would apply to that claim to include any new records.

[00:21:02] Speaker 02:
And so the VA has an obligation to review the entire record, even though the decision itself was made in August of 1985, because notice was delayed, they would have to actually go back and re-decide the claim under the new record.

[00:21:18] Speaker 01:
Counselor, you're well past your time.

[00:21:20] Speaker 01:
We will give you three minutes of rebuttal back.

[00:21:23] Speaker 01:
And the government can have six extra minutes.

[00:21:27] Speaker 01:
So please set the clock at 21 minutes.

[00:21:30] Speaker 01:
Mr. Oh.

[00:21:33] Speaker 03:
Thank you, Your Honors.

[00:21:34] Speaker 03:
May it please the court?

[00:21:35] Speaker 03:
This is a veteran's benefits case.

[00:21:37] Speaker 03:
This is for the proper effective date with the NUMA regulations.

[00:21:40] Speaker 03:
Mr. Oh.

[00:21:41] Speaker 03:
Mr. Oh.

[00:21:42] Speaker 04:
Yeah.

[00:21:43] Speaker 04:
I just want to ask you a basic question about general VA practice.

[00:21:49] Speaker 04:
If there is a claim filed by a veteran, let's say it's for hearing loss.

[00:21:55] Speaker 04:
And hypothetically, during the pendency of that claim before the VA, let's say the pendency is 10 years.

[00:22:03] Speaker 04:
There, his medical records on file get developed through, I don't know, examinations or other things.

[00:22:12] Speaker 04:
And then from his records alone, it becomes quite clear that the veteran is entitled to benefits for service connection to a completely different disease than the claim that he filed for.

[00:22:25] Speaker 04:
Let's say it's heart disease.

[00:22:28] Speaker 04:
Would the VA, under those circumstances,

[00:22:31] Speaker 04:
be required to construe that pending hearing loss claim as also including a second separate claim on heart disease as shown in his records?

[00:22:47] Speaker 03:
I think based upon my reading of the NIMR training guide that that would be correct.

[00:22:52] Speaker 03:
It would be dated back to when the medical evidence substantiating that covered herbicide

[00:23:02] Speaker 03:
Assuming the hearing loss claim was pending for that.

[00:23:06] Speaker 04:
In fact, that is what happened here with respect to his PTSD claim that was filed in 1996, right?

[00:23:14] Speaker 04:
The 1996 claim that was filed was just for PTSD.

[00:23:18] Speaker 04:
It wasn't for heart disease at all.

[00:23:20] Speaker 04:
And then somehow his records got developed over time.

[00:23:24] Speaker 04:
And then due to maybe changes in the law, he got to enjoy a presumption of service connection.

[00:23:30] Speaker 04:
And now all of a sudden that PTSD claim became something more.

[00:23:35] Speaker 04:
It became about PTSD and about this heart disease thing.

[00:23:39] Speaker 04:
I don't believe that's right.

[00:23:41] Speaker 04:
OK, so let's go now to this 1984 hearing loss claim that he filed.

[00:23:48] Speaker 04:
A request to reopen the hearing loss claim in 84.

[00:23:54] Speaker 04:
Let's assume for the moment that it just got lost in the VA, and it's been pending until today in 2023.

[00:24:03] Speaker 04:
I mean, it's a very long time, but let's just assume it was pending.

[00:24:09] Speaker 04:
And now we know that all these medical records got developed during the interim.

[00:24:17] Speaker 04:
Would you say that under my hypothetical, Spence would deserve an effective date of 1984 for the heart disease?

[00:24:29] Speaker 03:
Based upon my reading of the Neumann Training Guide, I can't see why the subsequent medical evidence for other diseases wouldn't be covered and backdated.

[00:24:40] Speaker 03:
So the answer is yes.

[00:24:42] Speaker 03:
I think so.

[00:24:43] Speaker 00:
So why was the CABC not incorrect in what it did in this case?

[00:24:49] Speaker 03:
Because different from the hypothetical that Judge Chen is posing, there was a heart condition claim decision in April 1985 that conclusively decided the heart condition claim, thereby taking it out of the hand of the hearing loss claim.

[00:25:06] Speaker 04:
So let me get this straight.

[00:25:08] Speaker 04:
If you're saying that in April of 1985, we know there was a denial of an express claim for heart disease, right?

[00:25:18] Speaker 04:
Okay, good.

[00:25:22] Speaker 04:
And then there was a co-pending claim at the time for hearing loss.

[00:25:28] Speaker 04:
Let's say instead of that being decided in August of 85, it was decided in

[00:25:35] Speaker 04:
August of 2015.

[00:25:36] Speaker 04:
That hearing loss claim would entitle Spence to a 1984 effective date for the heart disease, would it not?

[00:25:52] Speaker 03:
So the first part of your hypothetical, I'm not sure I understand, Jim, was it

[00:26:00] Speaker 04:
Yes, yes, what I'm trying to explore with you is is it the government's view that the April 1985 decision denying benefits for heart disease completely cuts off the ability of any other claim that is for anything else and

[00:26:22] Speaker 04:
to also be treated as a potential heart disease claim if the medical records at some later date, after that April 85 date, develops to a point where it does conclusively establish entitlement to a heart disease service connected.

[00:26:42] Speaker 03:
I think our position would be limited to what was decided by the April 1985 decision.

[00:26:48] Speaker 03:
And here the April 1985 decision specifically decided our condition.

[00:26:52] Speaker 04:
Yeah, but that doesn't really answer my question.

[00:26:55] Speaker 04:
My question is, is there something in the law that prevents that subsequent claim that is pending for something else, and we're just going to call it hearing loss for now,

[00:27:10] Speaker 04:
that precludes from treating that hearing loss claim as also including a heart disease claim, yet again, when the medical records at that later time are so developed to the point where the VA can see, yes, at this point in time, while this other claim is pending, this person's entitled to heart disease benefits.

[00:27:38] Speaker 03:
The way I read the NEMA regulations 3.16 is it's a limited retroactivity provision that allows for the backdating and the way I read subpart C1 and C2 provide limitations as to how that backdating could occur.

[00:27:55] Speaker 03:
So here, unless there's a decision that falls between the dates specified between subpart C1 and C2, you wouldn't get the benefit of the backdating.

[00:28:05] Speaker 00:
I'm completely lost.

[00:28:07] Speaker 00:
When you're talking about the regulations, you've got to point to me to what in the regulations.

[00:28:11] Speaker 00:
You're saying that what cut him out in this case was the fact that he had this previous claim and that that was decided and not appealed.

[00:28:22] Speaker 00:
So he's gone forever for heart conditions.

[00:28:25] Speaker 00:
So show me what in the regulation or in the training deals with that circumstance.

[00:28:32] Speaker 03:
So subpart C, which describes the effective date for disability compensation, and then subpart C1 states that if the VA denied compensation for the same covered herbicide disease in a decision issued at a specified date, it allows you to have the backdating or the retroactivity provisions of humor applied to that covered herbicide disease.

[00:28:56] Speaker 03:
And here, our position is that the court or the VA decided

[00:29:02] Speaker 03:
Mr. Spence's heart condition claim prior to that date, so therefore it wouldn't fall within that limited retroactive.

[00:29:09] Speaker 04:
Right, but what about C2?

[00:29:12] Speaker 03:
So C2 allows for covered herbicide disease backdating, where it's pending before May 3rd, 1989, or was received by VA between that date and the effective date of the statute of regulation establishing the presumption of service connection for the covered disease,

[00:29:32] Speaker 03:
And then it specifies when that isn't covered or how the vaccine would occur in that instance.

[00:29:37] Speaker 04:
OK, so hypothetically, let's assume that the August 1985 RO decision is procedurally defective.

[00:29:48] Speaker 04:
OK?

[00:29:49] Speaker 04:
That would mean that the hearing loss claim is still pending, because there was never an actual procedurally proper RO decision on the hearing loss claim.

[00:30:00] Speaker 04:
Just grant me that for purposes of the hypothetical.

[00:30:07] Speaker 04:
Under those circumstances, why wouldn't Spence enjoy what is given by 3.816C2 little i?

[00:30:20] Speaker 03:
Because hearing loss isn't a covered or recited disease.

[00:30:24] Speaker 03:
So based upon the regulatory language,

[00:30:26] Speaker 03:
The hearing loss decision, which isn't a cover to recite disease for purposes of retroactive

[00:30:32] Speaker 03:
wouldn't be something that would reopen.

[00:30:35] Speaker 04:
But we also know from the Federal Register notice, in which 3.816 was promulgated, that it's quite clear, and it's quoted in the blue brief page 10, that long-standing VA policy is going to apply here, which is you are going to construe a claim not only for what is expressly claimed, but also what is ever noted in the veteran records.

[00:31:00] Speaker 03:
So I think that the training guide provision is designed to give the veteran the benefit where the claim is referenced at the outset and evidence relating to the comfort herbicide disease arises over the course of developing the claim.

[00:31:19] Speaker 03:
But that's unlike the situation here where the claim was specifically referenced as, you know, it was referenced as a heart conditioning claim.

[00:31:28] Speaker 03:
And that claim was denied where the regional office specifically said, we don't find any evidence as to any cardiovascular disability, and then specifically denied the heart condition.

[00:31:39] Speaker 04:
I understand that, but I'm trying to understand what is it in the law that says when you have your formal claim for heart disease denied,

[00:31:49] Speaker 04:
and then you have a claim pending in the VA for something completely different.

[00:31:55] Speaker 04:
But nevertheless, at that later time, the records of the veteran become crystal clear that the person is entitled to benefits for a heart disease condition.

[00:32:06] Speaker 04:
Are you saying that, no, there's something in the law that prevents that other claim from being construed as also including the heart disease claim, which is quite apparent on the face of the veterans' records at that time, because once upon a time, there had been an actual heart disease claim that got denied?

[00:32:28] Speaker 04:
Is there something in the law that blocks

[00:32:30] Speaker 04:
ordinary VA practice from going forward, which is to construe any pending claim, including benefits that are apparent based on looking at the veteran's records while there's a different claim pending.

[00:32:45] Speaker 03:
I don't know of any specific legal provision that would categorically say it's bar.

[00:32:51] Speaker 04:
But that seems to be the position that you're asking us to adopt here in order to affirm.

[00:32:57] Speaker 03:
I think the position we're asking the court to adopt

[00:33:00] Speaker 03:
number one pursuant to the language of the regulation.

[00:33:03] Speaker 03:
The heart condition claim was fully and finally decided.

[00:33:08] Speaker 03:
The board made a fact finding that there wasn't, and this is appendix page 33, fact finding one and three, that the heart condition claim was finally decided in April 1985.

[00:33:20] Speaker 03:
And then in fact finding three said that there were no subsequent communications from the veterans standing between

[00:33:29] Speaker 03:
1985 and 1996 that would indicate that the heart condition plan was kept open or resurrected in any way.

[00:33:36] Speaker 03:
And all the Veterans Court did was substantiate that finding based upon its own analysis of the record as a whole, and it found that the board's findings shouldn't be overturned for clear error.

[00:33:46] Speaker 04:
Right, but here's the problem I have, Mr. O, and I want you to help me with it.

[00:33:51] Speaker 04:
In the appeal brief to the Veterans Court, Spence had a very clear theory that

[00:33:59] Speaker 04:
The August 1985 RO decision is not a legitimate decision, and so the hearing loss claim is still pending.

[00:34:07] Speaker 04:
And because that claim is still pending, any other claim that happens to become apparent on the face of the veterans records also is considered to be part of the hearing loss claim.

[00:34:23] Speaker 04:
And I didn't see the Veterans Court answer this question.

[00:34:27] Speaker 04:
I mean, the Veterans Court could have said, number one, what are you talking about?

[00:34:31] Speaker 04:
Just because the representative didn't get a copy of the August 85 decision doesn't mean that the August 85 decision isn't final.

[00:34:39] Speaker 04:
It is.

[00:34:40] Speaker 04:
Could have said that, didn't say that.

[00:34:42] Speaker 04:
The second thing the Veterans Court could have said in response to this argument is, hey, once the April 1985 decision issued

[00:34:49] Speaker 04:
on this heart disease claim that really cuts off any rights a veteran has to ordinary VA practice, which is to permit and construe any pending claim to include things that aren't expressly written into the claim but are apparent from the veteran's records.

[00:35:06] Speaker 04:
Veterans Court didn't say that either.

[00:35:09] Speaker 04:
So I'm at a loss here to try to figure out what am I supposed to do with what appears to be holes or questions that were presented to the Veterans Court that were never answered.

[00:35:22] Speaker 03:
I think the Veterans Court could address the question in terms of what the board found.

[00:35:28] Speaker 03:
What the board found was that there was a final decision on the heart condition point, and there was nothing done subsequent to that prior to 1996 to reopen it or resurrect it in any way.

[00:35:38] Speaker 03:
With respect to my friend's argument on the other side, I think it understood what the argument my friend on the other side was making and addressed it on Appendix H5 and through Footnote 2.

[00:35:51] Speaker 03:
To the extent my friend is putting a different gloss on that argument, I don't think the Veterans Court can be faulted for not addressing that specific gloss if it wasn't raised properly or embellished to the point of addressing every nuance of that argument.

[00:36:07] Speaker 03:
We know here as the Veterans Court,

[00:36:09] Speaker 00:
Let me give you two hypotheticals, both of which assume that the second claim with regard to hearing loss remained open because there was insufficient notice.

[00:36:21] Speaker 00:
So assume that.

[00:36:22] Speaker 00:
So you've got one hypothetical, which is this case, where you had a previous heart condition claim that was finally adjudicated or at least not appealed.

[00:36:31] Speaker 00:
and you say he doesn't get the benefit of the NEMAR sort of extension, if he had no claim for heart condition, if his only claim that we were talking about was an open hearing loss claim, and in years subsequent to that, you look at his records and there's clear evidence of a heart condition, can that be

[00:36:54] Speaker 00:
You know, can he assume the benefit of the earlier date, again, accepting that the hearing loss claim is still open?

[00:37:02] Speaker 00:
What is your answer to both of those hypotheticals?

[00:37:04] Speaker 00:
I assume the first is that he doesn't win, because that's this case.

[00:37:09] Speaker 00:
What about the second?

[00:37:11] Speaker 03:
The second, I think he would get the benefit of that.

[00:37:15] Speaker 00:
And that is because he hadn't adjudicated, really?

[00:37:21] Speaker 00:
What's the difference?

[00:37:22] Speaker 00:
I mean, why is there a difference?

[00:37:25] Speaker 00:
Whatever his heart condition was in 1985, he didn't get the benefit of that.

[00:37:30] Speaker 00:
And let's assume it got 100 times worse in 1987.

[00:37:33] Speaker 00:
So why would someone who filed an earlier claim that was rejected not be able to derive the benefit, and somebody who doesn't file a claim at all be allowed to get the benefit?

[00:37:49] Speaker 03:
Well, I think under

[00:37:50] Speaker 03:
When I read the Numer training guide, you file a claim, but if you get evidence that gets induced over the course of developing that claim, and medical evidence is included in the record that substantiates a covered herbicide disease, then VA as a practice includes the covered herbicide disease as part of its back-end provisions under Numer.

[00:38:15] Speaker 03:
I think the difference in the first case where the claim would be denied was that the claim is specifically referenced.

[00:38:21] Speaker 03:
It's specifically developed for that purpose, and then it's specifically denied by the VA, which under the regulations, again, the way we read subpart C is a limited retroactivity provision, and it provides the specific dates under which the retroactivity benefit could apply.

[00:38:39] Speaker 03:
If it doesn't fit within subpart C1, then you don't get the benefit of it.

[00:38:43] Speaker 03:
of those dates, those specified dates.

[00:38:45] Speaker 03:
And you have to give the facts to the claimant as your regulation.

[00:38:49] Speaker 04:
Right.

[00:38:49] Speaker 04:
But there's nothing in C1 that on its face that precludes the claimant from enjoying the benefit of the earlier of the filing date just because there was a separate claim for the actual disease that got denied.

[00:39:12] Speaker 04:
What I'm worried about is you're reading C1 two different ways based on two different fact patterns that I don't see actually written and baked into C1.

[00:39:23] Speaker 04:
Because you're acknowledging that if there had never been a heart disease claim in 1984 and there was only this hearing loss claim in 1984, and if there was never an RO decision on that hearing loss claim,

[00:39:37] Speaker 04:
then Spence would enjoy the effective date of 1984 for the heart disease clinic.

[00:39:45] Speaker 04:
Well, I think under the newer training guide... Let me just start... Can we agree that you agree with that?

[00:39:53] Speaker 04:
That's what I heard you say before.

[00:39:55] Speaker 03:
I think there's a slight nuance in that you would get the back dating up to the

[00:40:02] Speaker 03:
under which the medical evidence was induced, you wouldn't automatically get all the way back to the initial filing date.

[00:40:10] Speaker 03:
Why is that?

[00:40:11] Speaker 04:
Because that's not what happened with the PTSD claim in 96, right?

[00:40:18] Speaker 04:
He was able to get the 1996 date as the effective date for his heart disease claim, which even though the 1996 claim that was filed did not include heart disease.

[00:40:33] Speaker 03:
I think the effective date, and I'm not sure exactly how it specifically functions, but you either get the benefit of the initial filing date of the non-covered herbicide disease, or you would get the benefit of the back dating of when the medical evidence was induced as to the covered herbicide disease.

[00:40:53] Speaker 03:
And I'm not sure which would govern in a particular case, but I think the Numeric Training Guide explains with a little bit more depth than I'm able to.

[00:41:03] Speaker 03:
provided this bill.

[00:41:04] Speaker 01:
Counsel, you're in your final minute.

[00:41:06] Speaker 01:
Do you want to sum up your position?

[00:41:10] Speaker 03:
Yes, Your Honor.

[00:41:11] Speaker 03:
Thank you.

[00:41:12] Speaker 03:
Our ultimate position is that, like my current position on the other side of the Veterans Court, in addition to proper fact-finding, the board made a specific fact-finding as to the final date of the heart condition claim.

[00:41:23] Speaker 03:
It then said that there were no subsequent communications regarding that heart condition claim, spanning between 1985 and 1996.

[00:41:30] Speaker 03:
and therefore gave my friend's client on the other side the benefit of the retroactivity date up to 1996.

[00:41:36] Speaker 03:
All the veterans court did was affirm that factual finding.

[00:41:40] Speaker 03:
I understand my friend raises arguments on the other side, but again, the way we read the regulations, particularly subpart C, provided a very limited retroactivity benefit, and none of those situations were applied.

[00:41:52] Speaker 03:
In this instance, hearing loss is not a cover to the site, therefore would not benefit from a retroactivity, retroactivity provisions

[00:42:00] Speaker 03:
We respectfully request the court to confirm the decision of the federal court.

[00:42:03] Speaker 03:
Thank you, Your Honor.

[00:42:05] Speaker 01:
Thank you.

[00:42:05] Speaker 01:
Mr. Ho, Mr. Dohacuz has three minutes for rebuttal.

[00:42:12] Speaker 02:
OK.

[00:42:12] Speaker 02:
Thank you, Your Honor.

[00:42:13] Speaker 02:
I want to start first by acknowledging that our argument does focus on the implicit fact finding by the court.

[00:42:21] Speaker 02:
But if the court finds that there was no fact finding, then we would agree that that question should have been answered, as Judge Chin pointed out several times.

[00:42:28] Speaker 02:
I want to point next to findings of fact number three on appendix 33.

[00:42:33] Speaker 02:
This finding of fact is completely irrelevant to what we're talking about here.

[00:42:38] Speaker 02:
This talks about a communication between 1985 and 1996.

[00:42:43] Speaker 02:
But as we've been discussing quite extensively, if there is a pending claim, then we don't need a new communication because this claim is still pending.

[00:42:55] Speaker 02:
The government cites extensively to the training guidance, but I would submit that the regulation is actually what controls training.

[00:43:01] Speaker 04:
What I'm hearing from the government is in 1985 there were a bunch of claims filed.

[00:43:06] Speaker 04:
One was for heart disease and one was for hearing loss.

[00:43:08] Speaker 04:
You got an answer on the heart disease claim.

[00:43:11] Speaker 04:
It was a denial.

[00:43:12] Speaker 04:
So under those circumstances, it becomes very weird to say that you could still potentially get the filing date of 1984 by trying to use a different claim, the claim on hearing loss as some Trojan horse, to tack on the heart disease claim yet again when the heart disease claim that you filed in 84 was in fact denied in 85.

[00:43:37] Speaker 04:
So what do we do with that?

[00:43:38] Speaker 02:
So, Your Honor, I would say that

[00:43:41] Speaker 02:
That is completely contrary to what the VA actually did in this case, because they did assign an effective date based on a different claim in 1996 on the same heart disease.

[00:43:51] Speaker 04:
Yes, but listen to me again.

[00:43:52] Speaker 04:
The context here is very different.

[00:43:54] Speaker 04:
On the same day, the veteran filed all kinds of claims.

[00:43:58] Speaker 04:
One was for heart disease, and one was for hearing loss, reopening the hearing loss.

[00:44:03] Speaker 04:
And then got an answer on that heart disease claim, denied, and you didn't appeal.

[00:44:09] Speaker 04:
And then, you know,

[00:44:12] Speaker 04:
Under those circumstances, why would it make sense to try to treat a different claim, the hearing loss claim that was decided later, or maybe not decided at all, as being able to convert it into a heart disease claim when you were ready on that same day that you filed all these claims, got your answer on the heart disease claim?

[00:44:33] Speaker 02:
I would have two responses to that, Your Honor.

[00:44:35] Speaker 02:
Number one, that's what the regulation says to do.

[00:44:37] Speaker 02:
That's what the VA did in 1996.

[00:44:39] Speaker 02:
They found another claim.

[00:44:41] Speaker 02:
he submitted while that hearing loss claim was pending, assuming it is, again, that question we don't know the answer to, of additional diagnoses.

[00:44:50] Speaker 02:
And in our reply brief, page 5, we cited to the record, Appendix 30, where the RO's 2012 decision said, and I'm quoting here, medical evidence received in conjunction

[00:45:05] Speaker 02:
with this 1996 claim revealed a total of three heart attacks in May 84, April 87, and March 89.

[00:45:13] Speaker 02:
The decision also found that he suffered from angina during this period of time.

[00:45:17] Speaker 02:
And as we noted in our reply brief, 38 CFR 3.309E defines ischemic heart disease as each of those differently, coronary artery disease, angina,

[00:45:27] Speaker 02:
and myocardial infarction.

[00:45:29] Speaker 02:
So they are all different diseases, new diseases that arose after the hearing loss claim was filed.

[00:45:36] Speaker 00:
Not the 84, maybe the other two, but not the 84.

[00:45:39] Speaker 00:
The 84 was considered.

[00:45:40] Speaker 02:
Perhaps, Your Honor.

[00:45:41] Speaker 02:
But the effective date of a disability under 5110 is determined based on when entitlement arose, which is generally when it manifests, or the date of claim, whichever is early.

[00:45:56] Speaker 02:
And in this case, well, whatever facts found, but no earlier than the date of claim to be more precise.

[00:46:07] Speaker 01:
So if the veteran