[00:00:05] Speaker 00:
Long time your honor.

[00:00:10] Speaker 00:
May it please the court, Kenneth Carpenter appearing on behalf of Kenneth Brown.

[00:00:16] Speaker 00:
The issue in this case is whether or not the Veterans Court heard as a matter of law when it failed to consider or apply its own rule of law that was established in one of its earliest seminal cases in its jurisprudence, Akles v. Derwinsky.

[00:00:32] Speaker 00:
In this case, on February 19th, the VA awarded to Mr. Brown special monthly compensation based upon his need for aid and attendance and assigned an initial effective date of 2017.

[00:00:47] Speaker 00:
When that effective date was assigned, the VA was relying upon the statutory and regulatory provisions for the assignment of an effective date based upon the date of the claim.

[00:00:58] Speaker 00:
Therefore, that's the only consideration that was made by the VA and the board at the time in which they considered the matter of effective date.

[00:01:10] Speaker 00:
Mr. Brown appealed that decision and eventually got a

[00:01:15] Speaker 00:
intervening decision in which he got an earlier effective date assigned prior to the date of the original claim, going back to December 20th of 2016.

[00:01:25] Speaker 00:
That's in the record at appendix 108 to 116.

[00:01:32] Speaker 00:
Five years earlier, the VA had received two statements from Mr. Brown's wife and his daughter in June of 2010 that were prepared in connection with his claim for Social Security benefits, which described the impact of his Social Security service-connected disabilities on his need for aid and attendance for his daily functioning from others.

[00:01:57] Speaker 02:
Moreover, those statements were outside of the one year

[00:02:02] Speaker 02:
period that applies to evidence that's available to the VA prior to?

[00:02:10] Speaker 00:
Yes, they would have been, Your Honor, because they would have, in fact, predated the date of his formal claim for aid and attendance, which was in 2017.

[00:02:20] Speaker 02:
So doesn't that effectively disqualify those statements from being evidence that counts for purposes of determining what's before the board?

[00:02:27] Speaker 00:
Generally, they would, Your Honor, but in the context of special monthly compensation, they do not.

[00:02:33] Speaker 00:
And that's why the rule of law established in EGLS is so important, because the Veterans Court in EGLS clearly said that the board has a duty to assist claimants in developing facts pertinent to a claim under the duty to assist statute.

[00:02:58] Speaker 00:
and that the second obligation is the duty to distribute full information as to veterans eligibility in regards to those services and therefore

[00:03:09] Speaker 00:
later in the court's jurisprudence, it indicates that no claim is required for special monthly compensation.

[00:03:18] Speaker 00:
And therefore, the assessment is based upon the evidence that is before them.

[00:03:24] Speaker 00:
And this evidence was in the record and should have been considered at some time when the issue of effective date was presented.

[00:03:33] Speaker 00:
And it was litigated for a period of nearly two decades as to determine what the appropriate effective date is.

[00:03:40] Speaker 00:
By the time this case got to the board, the board certainly had that evidence in front of them.

[00:03:46] Speaker 00:
And they relied only upon the date of receipt of that information in 2016.

[00:03:54] Speaker 00:
The irony of which is, is that that evidence also predated the March 17 formal application.

[00:04:03] Speaker 00:
And therefore, the evidence, the record before the agency, implicated the rule of law in Aacles and should have been applied.

[00:04:13] Speaker 00:
Before the Veterans Court, the appellant represented by other counsel relied upon the VA's receipt of the TDIU application in 2009 as having raised this issue.

[00:04:31] Speaker 00:
The decision in this case, what Judge Falvey did in the case below, was to shift the burden to Mr. Brown to present evidence, to point to evidence in the record.

[00:04:44] Speaker 00:
that would have said that his TDIU application or any other evidence would have implicated special monthly compensation.

[00:04:52] Speaker 00:
Well, no.

[00:04:54] Speaker 02:
I didn't understand the CAVC as having adopted a different position from April's at Percivali, because they seem to say that it is not

[00:05:06] Speaker 02:
required that the veteran actually make the claim as long as the record evidence would support such a claim.

[00:05:16] Speaker 02:
Is that your reading of what the Navy said?

[00:05:18] Speaker 00:
Yeah, Charlie, but that has to do with making the claim.

[00:05:21] Speaker 02:
Right.

[00:05:21] Speaker 00:
Clearly, Mr. Brown has been seeking for two decades to get an earlier effective date for the award of his SMC benefits based on aid and attendance.

[00:05:34] Speaker 00:
And in that process, the board was required by statute to apply all potentially applicable provisions of law, which would have been ECLS.

[00:05:44] Speaker 00:
And if they had done so, then they would have examined that 2014 evidence, along with the evidence of TDIU, to determine whether or not it reasonably raised the need for SMC.

[00:05:58] Speaker 00:
And in this case, we're dealing with a situation in which the VA agrees from December 2016 that the veteran was entitled to those benefits.

[00:06:07] Speaker 00:
Another thing that's indisputable in this record, and it has been indisputable over the entire 20 years of this litigation, is that Mr. Brown had a 60% rating from 1995 for his deep thrombosis left leg.

[00:06:25] Speaker 00:
He had a 70% rating from 2010.

[00:06:28] Speaker 00:
He had a TDIU rating from 2011.

[00:06:32] Speaker 00:
He had a sleep apnea rating at 50% from 2018, excuse me, from December 2016.

[00:06:39] Speaker 03:
Where is the legal issue here?

[00:06:42] Speaker 03:
What is the question for us?

[00:06:45] Speaker 03:
What is the question of law before us?

[00:06:49] Speaker 00:
Whether or not, under the rule of law created by the Veterans Court, did the Veterans Court have an obligation

[00:06:57] Speaker 00:
to apply that rule and to require in that application of that rule the board apply that rule because under 7104 the board was obligated to apply all potentially applicable provisions of law.

[00:07:20] Speaker 00:
is in ACALS and that ACALS requires the examination by the VA, that the burden to search that record is on the VA when the evidence is in the record and the issue is reasonably implicated.

[00:07:38] Speaker 00:
Now here we're not talking about implicated to grant a benefit, we're talking about whether or not a benefit should have been granted at an earlier date if the VA had taken the appropriate action

[00:07:49] Speaker 00:
under its obligation under acres.

[00:07:52] Speaker 03:
But the CABC, in its decision, they know that Mr. Brown didn't submit these 2014 statements to the VA, that he did in April of 2018.

[00:08:05] Speaker 03:
Correct.

[00:08:07] Speaker 03:
But you're saying they were in the record in 2014?

[00:08:11] Speaker 00:
But no, Your Honor, they were in the record during the course of the proceedings to determine what the appropriate effective date was.

[00:08:20] Speaker 02:
When were they actually submitted for the first time to the VA?

[00:08:23] Speaker 00:
I believe it was 2018, Your Honor.

[00:08:29] Speaker 00:
I'm sorry.

[00:08:29] Speaker 00:
It was after 2014, the date that they were created, about two years later.

[00:08:33] Speaker 00:
That would have been 2016, not 2018.

[00:08:36] Speaker 01:
It was more than one year after.

[00:08:38] Speaker 00:
Oh yes, Your Honor.

[00:08:39] Speaker 00:
The one-year provision under 3.156B would not apply in this case.

[00:08:44] Speaker 01:
Right.

[00:08:44] Speaker 01:
So is that part of your legal claim as well, what you just said, that the one-year limitation does not apply in SMC, I guess?

[00:08:54] Speaker 01:
Is that your contention?

[00:08:56] Speaker 00:
In terms of the VA's obligation to, without application, explore entitlement to SMC when the evidence of record, and the evidence was in the record during the course of this appeal, and regardless of when it was submitted, it was dated in 2014, so they knew the date on which... Okay, so now I guess, so now I'm starting to understand maybe what your argument is.

[00:09:25] Speaker 03:
It's not disputed that it didn't come into the record before the VA until 2018.

[00:09:36] Speaker 03:
But you're saying because it was dated 2014, it should have been considered as of the 2014 day?

[00:09:44] Speaker 00:
Yes, Your Honor, because they had an obligation under ACALS to adjudicate the entitlement to SMC based upon evidence in the record.

[00:09:54] Speaker 00:
And since you do not need a formal claim to establish entitlement to SMC, the determination is when the veteran became eligible for the benefit.

[00:10:06] Speaker 00:
and the veteran became eligible for at least consideration of the benefit, all we're asking for is a decision that he is or isn't entitled to it under the ACALS criteria.

[00:10:18] Speaker 00:
If they had addressed that issue, then we could have argued that the evidence supported an award.

[00:10:24] Speaker 00:
but they refused to do so.

[00:10:28] Speaker 01:
Are you saying as part of the duty to assist the veteran in the context of SMC they have an obligation to consider all the evidence regardless of when it comes into the record and regardless of the date that it was created?

[00:10:42] Speaker 00:
That's correct.

[00:10:43] Speaker 00:
That's my view of how the rule of law operates.

[00:10:47] Speaker 00:
And have we said that before?

[00:10:48] Speaker 00:
No, Your Honor.

[00:10:49] Speaker 00:
And I don't believe

[00:10:51] Speaker 00:
other than in the case line of cases that deal with 3.103 a for the duty to maximize has the court address that but they've yet to address it in this particular content.

[00:11:07] Speaker 03:
And I'm sorry this is redundant but I think this circles back to a question that Judge Bryson had and I didn't understand the answer.

[00:11:13] Speaker 03:
It seems to me the problem is that 2014 was more than one year before anything even resembling a claim was filed.

[00:11:20] Speaker 03:
And you're saying, in this context, that doesn't matter?

[00:11:23] Speaker 00:
That's correct, Your Honor.

[00:11:24] Speaker 00:
That is the rule of law in Akles, that there is an obligation when the evidence raises it.

[00:11:33] Speaker 00:
In Akles, it was that evidence that was already in the record sufficient to do it.

[00:11:39] Speaker 00:
And what the Veterans Court did in Akles was to send it back

[00:11:43] Speaker 00:
to do this exact analysis.

[00:11:45] Speaker 02:
But as I understand it, it did not involve the one year.

[00:11:49] Speaker 00:
They did not, your honor.

[00:11:52] Speaker 02:
No.

[00:11:52] Speaker 02:
Thank you.

[00:12:10] Speaker 04:
Excuse me.

[00:12:11] Speaker 04:
Good morning, Your Honor.

[00:12:12] Speaker 04:
May it please the court?

[00:12:13] Speaker 04:
I think everyone in this case agrees, including the Veterans Court, that a veteran is not required to say the words special monthly compensation or aid and attendance in order to sort of implicate the VA's obligation to investigate that entitlement.

[00:12:28] Speaker 04:
Everybody agrees that the secretary's obligation to consider whether a veteran is maybe eligible for special monthly compensation when that issue is reasonably raised by the record or can be reasonably inferred from the evidence before.

[00:12:44] Speaker 03:
OK, so what's the timeline?

[00:12:46] Speaker 04:
So the timeline is Mr. Brown notified VA that he intended to submit a request for in attendance and sort of an inquiry as to why it wasn't previously granted in 2016.

[00:13:01] Speaker 04:
He then followed that up with an actual submission in 2017, which is when his sworn declaration states that he submitted the

[00:13:12] Speaker 04:
prior declarations that were prepared for the Social Security Administration in 2014.

[00:13:18] Speaker 04:
The records, the face of the records appeared to indicate that those were not actually received at VA until 2018.

[00:13:23] Speaker 04:
I think as the Veterans Court correctly recognized, that doesn't matter because what the factual finding was that was made by the VA and that was left undisturbed by the Veterans Court is that the earliest time that sort of

[00:13:43] Speaker 04:
it was either factually ascertainable, was one of their findings, was December 2016, but also alternatively that the record didn't sort of implicate, it didn't reasonably infer on this record that Mr. Brown needed the level of assistance that would implicate aid and attendance special monthly compensation until December 2016.

[00:14:06] Speaker 04:
And it's in

[00:14:09] Speaker 04:
38 USC 5110, which is the effective date statute, B3 specifically, because this is an award for increased compensation.

[00:14:18] Speaker 04:
Special monthly compensation is an increase in the amount of money that we pay you based on different ramps.

[00:14:27] Speaker 04:
There's different flavors of special monthly compensation, but they all result in an increase in payment.

[00:14:33] Speaker 04:
And that an effective date of an award of increased compensation

[00:14:36] Speaker 04:
shall be the earliest date of which it is ascertainable that an increase in disability had occurred if application is received within one year of such date."

[00:14:48] Speaker 04:
So in other words, you get a year grace period.

[00:14:51] Speaker 04:
Once you need the additional assistance, you don't have to notify VA about it right away in order to get the benefit of that date.

[00:14:58] Speaker 04:
You can let VA know within a year, and we'll go back to the date when it's factually ascertainable.

[00:15:04] Speaker 04:
But if

[00:15:05] Speaker 04:
it becomes factually as retainable more than a year out, but you don't sort of raise it and bring it to VA's attention until a year later, then the effective date becomes when it is actually raised with VA.

[00:15:19] Speaker 03:
So tell us the date here.

[00:15:20] Speaker 03:
So what are we talking about here?

[00:15:23] Speaker 04:
So here, December 20, 2016, which is the effective date that Mr. Brown currently has, the RO and the board found that that was both

[00:15:32] Speaker 04:
the earliest date in which it was factually ascertainable and also the date on which he reasonably raised it to put VA on notice of it.

[00:15:41] Speaker 04:
So in this case, those dates are one and the same.

[00:15:44] Speaker 04:
The Veterans Court sort of observed that it didn't hold the conclusion that that was the earliest factually ascertainable date was clearly erroneous, but it observed that even if

[00:15:57] Speaker 04:
the submissions that were put in in 2018 that went back to 2014, if that had been the earliest factually ascertainable date, it still wouldn't change the effective date because Mr. Brown didn't put VA on notice of need for that kind of care until more than a year after 2014.

[00:16:14] Speaker 03:
Okay, and I guess, as I would call Mr. Carpenter's argument, is that that section isn't applicable to these circumstances.

[00:16:23] Speaker 04:
And there's just nothing in the law that suggests that.

[00:16:26] Speaker 03:
In fact, B3... And does ACLES deal with that at all?

[00:16:29] Speaker 04:
ACLES does not deal with that at all.

[00:16:30] Speaker 04:
ACLES, frankly, is a very fact-bound decision.

[00:16:33] Speaker 04:
At the end of the day, I think, much as everyone agrees that the VA's obligation is to look at special monthly compensation when it is reasonably raised by the record,

[00:16:43] Speaker 04:
I think we also all agree that that's not going to be the case for every veteran and every record and every situation.

[00:16:51] Speaker 04:
And so what we're left here with is a quintessential fact question of whether Mr. Brown's record and whether the evidence before the VA and Mr. Brown's case before

[00:17:01] Speaker 04:
December 2016, which is his current effective date, reasonably raised or reasonably implicated his need for these kinds of benefits.

[00:17:08] Speaker 02:
Well, but there's a legal question, is there not?

[00:17:11] Speaker 02:
And it's implicated by Mr. Carpenter's argument that the one year grace period does not apply to SMC slash ANA.

[00:17:25] Speaker 02:
I think that's the argument that he's pressing today.

[00:17:28] Speaker 02:
And that sounds like a legal argument to me.

[00:17:31] Speaker 02:
do disagree with that legal argument, but that doesn't sound like a factual question.

[00:17:36] Speaker 02:
It's a legal argument, right?

[00:17:38] Speaker 04:
So I think phrased that way, I think that sounds much more like a legal argument.

[00:17:42] Speaker 04:
I agree with that.

[00:17:43] Speaker 02:
I don't think.

[00:17:43] Speaker 02:
I think, unless I'm misunderstanding him, that that's the way he was phrasing it.

[00:17:48] Speaker 04:
I don't think that argument is in his brief.

[00:17:50] Speaker 04:
And I think that argument is unsupported in the law.

[00:17:54] Speaker 02:
But it would be enough to provide us with, for example, jurisdiction.

[00:18:01] Speaker 04:
I think potentially, yes, the court would have jurisdiction to reject that idea.

[00:18:06] Speaker 04:
But I'm not sure it's properly raised in these briefs.

[00:18:12] Speaker 03:
Because I understood the argument he was making that the CABC aired by requiring you to have an explicit request for SMC entitlement before 2016.

[00:18:24] Speaker 03:
So it was more this dispute over an explicit misrequest.

[00:18:28] Speaker 03:
Is that the way you understood what was presented on the brief?

[00:18:31] Speaker 04:
I think so.

[00:18:32] Speaker 04:
I think really what the briefs highlight is a factual dispute of whether this record actually raises SMC entitlement before 2016.

[00:18:42] Speaker 04:
And to be clear, on that version of the argument, the Veterans Court was explicit that it did not take that position.

[00:18:50] Speaker 04:
On Appendix Page 7, the Veterans Court explicitly recognized that it is conceivable that a request for TDIU

[00:18:59] Speaker 04:
alleging symptoms outlined in Section 3.352A, which is the regulation that defines aid and attendance benefits for SMC, could, emphasis the Veterans Court, implicitly raise the issue of entitlement to SMC for aid and attendance.

[00:19:17] Speaker 04:
But the Veterans Court also observed in that same paragraph that an inability to secure or follow substantially-gave unemployment does not necessarily

[00:19:27] Speaker 04:
imply an inability to perform the basic daily functions unassisted.

[00:19:33] Speaker 04:
So they absolutely recognized what

[00:19:36] Speaker 04:
Akles applied and said that you can have a claim for SMC without literally saying the words SMC.

[00:19:44] Speaker 04:
What they affirmed and left undisturbed was the board's factual determination that this record did not do so until 2016.

[00:19:52] Speaker 02:
You've covered this already, I think, in your response to Judge Prost's question.

[00:19:57] Speaker 02:
But just to make sure I understand, since this is, well,

[00:20:03] Speaker 02:
Well, at least it wasn't spelled out in great detail in the briefing.

[00:20:07] Speaker 02:
But when, in your view, did the grace period, the one-year grace period, begin and end after one year end?

[00:20:19] Speaker 02:
So the evidence that we're talking about, which is the evidence that was initially submitted to the Social Security Administration and ultimately found its way to the VA.

[00:20:28] Speaker 04:
Right.

[00:20:29] Speaker 04:
So I think, given the board's finding, that the first time that VA was put on notice that aid and attendance might be at issue here was December of 2016, that the one-year grace period for factually ascertainable would be the year before that, so potentially December of 2015.

[00:20:58] Speaker 04:
And that would be for, like, if you were to go back and say, like, yes, you told us that I need this level of assistance now.

[00:21:07] Speaker 04:
But in fact, we can see that you started needing that level of assistance within that one year period before you came and told VA about it.

[00:21:16] Speaker 04:
5110b3 would let us go back up to one year if that's where it's actually ascertainable.

[00:21:25] Speaker 04:
December 2015 I think would be the most you could you could go back for.

[00:21:30] Speaker 02:
Okay and that when you say you go back what we're saying is that he had to have

[00:21:38] Speaker 02:
During that one year period, he had to have provided that evidence to the VA?

[00:21:43] Speaker 02:
No.

[00:21:44] Speaker 02:
What is it exactly that he has to have done during that one year period?

[00:21:47] Speaker 04:
So he doesn't have to do anything during that one period.

[00:21:49] Speaker 04:
That one period, look back period, is whether it is factually ascertainable that he needed that level of assistance.

[00:21:57] Speaker 02:
Well, I'm sure you said he had to do.

[00:21:59] Speaker 02:
Yeah.

[00:21:59] Speaker 02:
But it has to have been factually ascertainable during that period.

[00:22:03] Speaker 02:
Correct.

[00:22:04] Speaker 02:
And during that period, you're saying,

[00:22:06] Speaker 02:
that information is not presented to the VA.

[00:22:10] Speaker 04:
What I'm saying is that the VA, in this case, made two factual findings.

[00:22:14] Speaker 04:
And each one is sort of independently dispositive, I think, on the effective date question here.

[00:22:21] Speaker 04:
Because what the RO and the board found was that December 2016 was also the earliest date that it was factually ascertainable that Mr. Brown needed that level of assistance.

[00:22:32] Speaker 04:
So VA's factual finding was that before December 20, 2016, which is his current effective date, he did not need the level of assistance that is necessary to qualify for aid and attendance special monthly compensation.

[00:22:47] Speaker 04:
There is that dispute as to whether the evidence from 2014 and those declarations could have supported sort of a different factually ascertainable date.

[00:22:59] Speaker 04:
But the VA actually, in this case, found that he did not, as a factual matter, need the level of assistance until December 2016.

[00:23:06] Speaker 02:
So now I'm a little confused.

[00:23:08] Speaker 02:
Are you saying one, two things?

[00:23:10] Speaker 02:
Are you saying either during the one year period before 2016, he needed to submit

[00:23:17] Speaker 02:
the information that he had previously submitted to the Social Security Administration, or are you saying he needed to update that information and then submit it or have it find its way into the record before the VA?

[00:23:32] Speaker 04:
So neither.

[00:23:36] Speaker 04:
What I'm saying is that in this case, the board ultimately found that he needed that level of assistance not based on those 2014 declarations.

[00:23:48] Speaker 04:
So they concluded that when they looked at the totality of the evidence, that in 2014, he didn't actually need that level of assistance.

[00:23:57] Speaker 04:
And so what the grace period gives you is that assuming you need the level of assistance that would qualify you for benefits, you have a year after that point to notify VA.

[00:24:12] Speaker 04:
And we will give you an effective date that goes back to when you actually started needing the assistance, even though you didn't submit the documentation.

[00:24:21] Speaker 03:
As I said, I didn't really see the argument about this one year thing in the brief.

[00:24:26] Speaker 03:
So what is your understanding of what the argument was in the brief?

[00:24:31] Speaker 04:
I think the argument in the brief was that the Veterans Court did not sufficiently appreciate that you can have an entitlement be inferred by the record, even if it's not explicitly raised.

[00:24:45] Speaker 03:
And your position?

[00:24:47] Speaker 04:
Is that the Veterans Court absolutely appreciated that and applied that rule of law.

[00:24:51] Speaker 04:
And what's left here is a factual dispute about what this record actually showed for Mr. Brown.

[00:24:56] Speaker 04:
And that is beyond the scope of this court's jurisdiction.

[00:24:59] Speaker 02:
Yes, I'm open to it, my guess is.

[00:25:01] Speaker 02:
Let me try to see if you can tell me what needed to happen during that one year period in order for him to be eligible again an earlier date.

[00:25:14] Speaker 04:
He needed to have reached the level of needing the level of assistance that he wasn't able to care for himself.

[00:25:23] Speaker 04:
I think the- Well, but in terms of what had to be in the record, what needed to be in the record?

[00:25:30] Speaker 04:
There needed to be evidence that he needed that level of assistance during that year.

[00:25:37] Speaker 04:
So it's a factual.

[00:25:39] Speaker 04:
That is also a factual dispute that Mr. Brown has with

[00:25:43] Speaker 04:
VA as to whether he actually needed that level of assistance before December 2016.

[00:25:48] Speaker 04:
Thank you.

[00:25:50] Speaker 04:
Thank you.

[00:26:05] Speaker 00:
Thank you.

[00:26:08] Speaker 00:
of error is that the Veterans Court erred as a matter of law when it determined that the VA had no obligation to consider the implicit or inferred, under the language used in ACALS, SMC claim because Mr. Brown did not raise it explicitly.

[00:26:29] Speaker 00:
And that is simply contrary to the rule of law in ACALS.

[00:26:33] Speaker 00:
There is no explicit requirement.

[00:26:36] Speaker 03:
You don't even have to.

[00:26:37] Speaker 03:
Can you just point us in the CABC decision, where are you seeing that it imposed such an explicit decision?

[00:26:43] Speaker 00:
Appendix 7 to 8.

[00:26:46] Speaker 02:
Are you talking about line 4 of page 7, where they say it?

[00:26:55] Speaker 02:
I'm sorry, 7 to 8.

[00:26:56] Speaker 02:
Oh, yeah.

[00:26:57] Speaker 02:
Line 4, starting with line 2 through 4.

[00:27:02] Speaker 02:
He does not explain how the issue of sentencing.

[00:27:05] Speaker 02:
But that's, as I read it, that's his failure to explain to the CABC where there was this evidence in the record not saying he didn't explain to the board why he needed this assistance.

[00:27:22] Speaker 00:
But since the board?

[00:27:24] Speaker 02:
He does not explain the CABC as saying what he has not done with respect to his presentation to them.

[00:27:31] Speaker 00:
Right, Your Honor, but that's why the issue is framed in terms of whether or not the Veterans Court erred by not considering its own rule of law that has a different legal standard in which no explicit claim needs to be filed, no explicit pointing to evidence needs to be done.

[00:27:52] Speaker 03:
Well, all they're saying here is he does not explain, so how the victim of SMC

[00:28:05] Speaker 00:
it's contrary to the rule of law in Agels.

[00:28:08] Speaker 00:
Agels clearly says that the veteran need do nothing, that the entire burden is on the VA, and that the obligation here under this rule of law is imposed upon the VA.

[00:28:23] Speaker 00:
But this court will examine the decision in Agels.

[00:28:26] Speaker 00:
The Veterans Court literally stopped the proceedings and said, here's

[00:28:32] Speaker 00:
where the evidence is in the record and here's the obligation that you have and we're sending it back to you board to do that and that's what the veterans court should have done in this case because that evidence in twenty fourteen regardless of what it was submitted was in the record of proceedings before the board when the board made its decision on effective date

[00:28:58] Speaker 00:
Unless there's further questions, Your Honor.

[00:29:00] Speaker 00:
Thank you very much for your time.