[00:00:05] Speaker 03:
Mr. Carpenter, whenever you're ready.

[00:00:09] Speaker 00:
May it please the court, Kenneth Carpenter appearing on behalf of Philip Clifton.

[00:00:13] Speaker 00:
An issue in this case is whether or not the Veterans Court used the wrong legal standard to determine the scope of Mr. Clifton's claim in relationship to his cervical spine disability.

[00:00:24] Speaker 00:
In May of 1969, while on active duty, Mr. Clinton was injured his back when the truck he was riding in struck a landmine.

[00:00:32] Speaker 00:
Since March, excuse me, since March of 1992, he has been attempting to secure the maximum benefit available under law for his back injury.

[00:00:45] Speaker 00:
This claim has been continuously pursued since 1992.

[00:00:49] Speaker 00:
The most recent decision of the Veterans Court addressed the issue of the ratings of two of the subsidiary disabilities.

[00:00:59] Speaker 03:
Can I ask you a question?

[00:01:11] Speaker 03:
Nick injury, cervical injury in a kind of category of back injuries.

[00:01:16] Speaker 03:
And I gather the board and someone said lumbar is one thing, cervical is another, and you didn't mention cervical until 2005.

[00:01:28] Speaker 00:
Well, I believe the effective date of sign was 2013, but in any event, the first time it was noted... I thought it was put back to 2005.

[00:01:38] Speaker 00:
Oh, you're right.

[00:01:39] Speaker 00:
You're correct.

[00:01:40] Speaker 00:
You're correct, Your Honor.

[00:01:40] Speaker 00:
I apologize.

[00:01:42] Speaker 00:
It was first noted in his records in 2001, which is an appendix 86 to 88, and then it was confirmed by VA examination in 2003 at 92 to 93 in the appendix.

[00:01:56] Speaker 00:
It is our position that a claim for compensation for a back injury includes anything that is related to the back that comes up during the course of the continuous pursuit of that claim, and that a claim must be regarded by this court

[00:02:12] Speaker 00:
uh... based upon the regulatory statement of policy of the secretary that the v a has an obligation to develop uh... evidence to support every claim that can be granted uh... to the maximum benefit available under law so long as it is consistent with uh...

[00:02:31] Speaker 00:
the applicable provisions of law.

[00:02:33] Speaker 00:
The applicable provisions of law relied upon by the Veterans Court in this case were 38 CFR 3.155A in defining what constitutes an informal claim.

[00:02:44] Speaker 00:
This was not an informal claim.

[00:02:46] Speaker 00:
This was a formal claim.

[00:02:48] Speaker 00:
This was a formal claim for compensation that began in 1992.

[00:02:51] Speaker 00:
That claim has been continuously pursued, and Mr.

[00:03:01] Speaker 00:
Excuse me.

[00:03:03] Speaker 00:
Sorry, Mr. Clifton should be allowed to Well, it suddenly went totally blank I apologize That mr. Clifton is entitled to an effective date from the date in which his medical records first established He's not asking for an effective date from 1992 when his claim began because the cervical injury was not discovered as being disabling until 2001 and therefore

[00:03:33] Speaker 00:
the legal standard used by the Veterans Court under 3.155A.

[00:03:39] Speaker 00:
requiring that there be some kind of identification of the particular benefits sought is inconsistent with the appropriate assignment of an effective date based upon a claim that has been continuously pursued in this case in nineteen ninety two we believe the correct legal standard is legal standard that was articulated initially by the veterans court in clemens and that based upon that

[00:04:07] Speaker 00:
determination this court in Murphy endorsed the Clemens lenity rule in its holding and that that rule is based upon a sympathetic reading of the scope of the claim that is best accomplished by looking to the veterans reasonable expectations in filing and the evidence developed in the processing of the claim.

[00:04:31] Speaker 00:
Under that standard Mr. Clifton is clearly entitled to

[00:04:36] Speaker 03:
Didn't the Veterans Court recognize that standard?

[00:04:39] Speaker 03:
And if that's right, then why is your argument not disagreement with the application of it to these circumstances?

[00:04:47] Speaker 03:
Which, as you know, is not something we can do.

[00:04:49] Speaker 00:
It's not within this court's jurisdiction.

[00:04:50] Speaker 00:
Well, it has to do, in our view, with whether or not

[00:04:54] Speaker 00:
the legal standard was properly applied.

[00:04:57] Speaker 00:
The legal standard that is referenced at Appendix 8 is a legal standard that is dependent upon a different standard requiring the identification of a particular benefit sought, not based upon the announcement of the rule in Clemens and endorsed by this court in Murphy that allows for a much broader interpretation of

[00:05:23] Speaker 00:
a pro se pleading by a veteran.

[00:05:27] Speaker 00:
At the time that this claim was filed, he was a pro se claimant and simply identified in the application.

[00:05:35] Speaker 00:
It's in the record at

[00:05:50] Speaker 00:
22 21 to 24 and then 22 He described his the compensation that he's seeking is for a back injury There's simply no reason why a veteran in this system should be denied an effective date From the date in which the evidence established the existence of that disability

[00:06:12] Speaker 02:
Didn't he explain in the 2005 correspondence that the neck injury or neck claim is separate from the lower back claim?

[00:06:23] Speaker 02:
I'm sorry, did he?

[00:06:24] Speaker 02:
Yeah, Mr. Clifton.

[00:06:26] Speaker 02:
Right.

[00:06:26] Speaker 02:
In his 2005 correspondence, which has been interpreted as a claim for the neck injury, didn't he note that the neck claim is a separate claim from his

[00:06:42] Speaker 02:
pre-existing back claim.

[00:06:45] Speaker 00:
That is what Mr. Clifton articulated but Mr. Clifton is a lay person and the Veterans Court in Clemens recognized that veterans are not medical experts and any more than they are legal experts and it would be unreasonable in this

[00:07:05] Speaker 00:
non-adversarial system to prevent Mr. Clifton from getting the earliest possible effective date based upon the way in which he chose to articulate it.

[00:07:16] Speaker 02:
I guess I'm still lost on what we should do and why this case is not like others, like Ellyton and Butler.

[00:07:23] Speaker 02:
When the board and the Veterans Court both understood that there was an obligation here under the law to read Mr. Colm's

[00:07:32] Speaker 02:
Mr. Clifton's claim sympathetically, to read it with what would be the objective reasonable expectations that a pro se would have in filing such a claim, and that there is a duty to assist a veteran for any given claim.

[00:07:52] Speaker 02:
And given that all of that was articulated, I don't see what we can do beyond recognizing, as we did in Ellington and Butler, that what we have in front of us

[00:08:02] Speaker 02:
is simply an application of those laws, the facts of this record, where the Veterans Court and the Board both concluded that the 1992 claim for a back just couldn't possibly also encompass this current neck injury claim.

[00:08:19] Speaker 00:
we are they both around out of the same incident insert and the basis for compensation under eleven ten is that there is a resulting disability from an injury incurred while serving on active duty the injury that he sustained was as a result of his truck hitting a landmine it is simply unreasonable to suggest that in this non adversarial supposedly veteran friendly system that we're going to hold the veteran to account

[00:08:48] Speaker 00:
on the basis that literally decades after the fact, a court decides that, well, that's not reasonable.

[00:08:58] Speaker 00:
It is reasonable.

[00:09:00] Speaker 00:
And more importantly, it's consistent with the duty to maximize benefits under 3.103A.

[00:09:06] Speaker 00:
That is substantively different than the duty to assist under 5103A.

[00:09:13] Speaker 00:
We're not talking about the duty to assist, we're talking about the obligation to develop facts based upon the evidence that's presented in the record during the course of a continuously pursued claim.

[00:09:24] Speaker 00:
And that is a distinction at law that needs to be articulated by this court to ensure that veterans get the maximum benefit that they're entitled to under law.

[00:09:35] Speaker 00:
He is not asking for an effective date all the way back to 1992.

[00:09:39] Speaker 00:
It would be unreasonable to suggest that this injury was known at the time.

[00:09:47] Speaker 02:
So what's the earliest effective date Mr. Clifton wants?

[00:09:50] Speaker 00:
2001, Your Honor, the time in which his medical records first noted his cervical spine injury.

[00:09:56] Speaker 02:
Was there a claim filed in 2001, informal or formal?

[00:10:00] Speaker 00:
There was a formal claim that was being continuously pursued in 2001.

[00:10:03] Speaker 00:
The 1992 claim.

[00:10:05] Speaker 00:
And that's the 1992 claim.

[00:10:06] Speaker 02:
But there wasn't a separate claim filed in 2001.

[00:10:09] Speaker 00:
And it is unreasonable.

[00:10:11] Speaker 02:
So how would Mr. Clifton be able to tie his earliest effective date to 2001?

[00:10:19] Speaker 00:
because he has a pending claim for compensation for his back injury.

[00:10:24] Speaker 00:
And parcel of his back injury is the injury to his neck that was not discovered and confirmed to be a disability until 2002, 2001.

[00:10:36] Speaker 00:
And because he was continuously pursuing his underlying back claim, then there would be no basis to make this connection.

[00:10:46] Speaker 00:
But this is part of a three-decade-plus continuous prosecution of his right to the maximum benefit available under law.

[00:10:54] Speaker 00:
See that I'm into my rebuttal time.

[00:10:55] Speaker 00:
I'd like to reserve the balance.

[00:10:57] Speaker 03:
Thank you.

[00:11:07] Speaker 01:
May I please report?

[00:11:08] Speaker 01:
Contrary to Mr. Clifton's contentions, the Veterans Court applied the correct legal standards and determined that the scope of the March 1992 claim for a back injury did not encompass a neck injury that was only discovered nearly 13 years later.

[00:11:28] Speaker 01:
At bottom, although Mr. Clifton is attempting to frame this appeal as involving two competing legal standards,

[00:11:38] Speaker 01:
Now that we are in receipt of Mr. Clifton's reply group and the argument this morning, there's nothing left here.

[00:11:46] Speaker 01:
The Veterans Court applied the standard that is being sought by Mr. Clifton.

[00:11:52] Speaker 01:
It interpreted Mr. Clifton's claim sympathetically as a veteran.

[00:11:58] Speaker 01:
It looked to his reasonable expectation at the times that the claims were filed.

[00:12:03] Speaker 01:
and examined the record evidence to determine what injuries existed at the time of the claim and determined that the claim prior to 2005 did not encompass the neck injury.

[00:12:17] Speaker 01:
Frankly, Your Honor, Mr. Clifton's counsel made several references to the back injury, which is a separate and distinct claim.

[00:12:24] Speaker 01:
And any layman could determine that a lower back injury involving lumbar is separate and distinct from a neck injury.

[00:12:33] Speaker 01:
That is not asking any layman or veteran to serve as a medical professional.

[00:12:37] Speaker 01:
Those are the types of distinctions that every individual makes in their everyday life.

[00:12:42] Speaker 01:
And frankly, we're one to approach a doctor and complain about a lower back injury

[00:12:46] Speaker 01:
that would not put that doctor or the veteran's court, excuse me, or the veteran VA on notice regarding a neck injury.

[00:12:56] Speaker 03:
Can I ask you something?

[00:12:57] Speaker 03:
This just came up at the end of Mr. Carpenter's argument, and maybe I missed this before.

[00:13:03] Speaker 03:
Was the issue that was put to the Veterans Court and or the board about an effective date

[00:13:17] Speaker 03:
in the sense that there was a claim, according to Mr. Clifton, that covers this since 1992, but you don't get an effective date until the injury occurs or manifests, which at least I think it was diagnosed only in 2001.

[00:13:40] Speaker 01:
Frankly, Your Honor, that was news to me as well, that we're not trying to get back to 1992.

[00:13:44] Speaker 01:
That being said, I don't think it is of issue at this point, because the Veterans Court examined the medical records all the way back to 1992.

[00:13:56] Speaker 01:
So this is not an issue of they did not go back far enough.

[00:14:00] Speaker 01:
Frankly, they looked all the way back to the initial claim to determine whether there was any evidence in the records supporting a neck injury.

[00:14:07] Speaker 01:
That did not exist until 2001.

[00:14:11] Speaker 01:
There was an intervening period of four years where the neck injury was never mentioned by Mr. Clifton despite this ongoing 1992 claim and it was only until I believe March 2005, excuse me if that month is incorrect but I'm pretty sure about that, March 2005 that the neck injury was included in any claim where there was an attempt to

[00:14:33] Speaker 01:
include I believe the word was all residuals of the lower spine injury, of the spine injury and that was interpreted to include the cervical spine also known as the neck in layman's terms.

[00:14:44] Speaker 01:
I don't think it's a distinction with the difference whether the claim is seeking to go back to 2001 or 1992 because frankly there's just no evidence in any of the claims prior to 2005 that we were, that Mr. Clifton was seeking compensation for a neck injury.

[00:15:01] Speaker 02:
Is there a legal theory though

[00:15:03] Speaker 02:
that I'm not aware of, but you are, where a claimant could use a 1992 claim as a vehicle to get an earlier effective date to 2001 instead of 2005 when other claims filed because

[00:15:25] Speaker 02:
this other injury for the neck manifested itself in 2001.

[00:15:30] Speaker 02:
Maybe not on these facts, but some other facts where you don't necessarily have to file a new claim, but as long as some injury that is related to the original injury for which you file the claim, you could enjoy that date of when that injury manifests itself to be the effective date.

[00:15:52] Speaker 02:
As opposed to always requiring

[00:15:54] Speaker 01:
I'm not aware of any such legal theory your honor I would posit that it may be potentially applicable if for instance I have a shoulder injury

[00:16:12] Speaker 01:
in nineteen ninety two and later have some type of thoracic outlet syndrome which is also related to the shoulder using that just from baseball knowledge i apologize but in any event i agree with you your honor but but that being said you know i think that that is if there were evidence in the record that could somehow tie

[00:16:34] Speaker 01:
later injury to the 1992 claim perhaps that would be some set of facts but that's not what we have here here we have two distinct injuries one of which that did not manifest itself until nine years after and then was not the subject of any claim until four years after that so here we have a

[00:16:54] Speaker 01:
We don't even have an attenuated chain.

[00:16:57] Speaker 01:
We have two separate chains of inquiry.

[00:17:01] Speaker 01:
And we are relying on a 1992 claim that is conceded to be a back injury.

[00:17:08] Speaker 01:
There's no evidence for the neck injury.

[00:17:10] Speaker 01:
So to try to relate it back to a ongoing back claim chain is not the applicable path here.

[00:17:22] Speaker 01:
Your Honor, I think it's very clear that there is no real distinction between the two parties' legal standards that they're proposing here.

[00:17:32] Speaker 01:
And I think it's relatively clear, directing your attention to the appendix 8 through 10, that the Veterans Court, in rather systematic fashion, examines the evidence in the record, makes a factual finding that there was no evidence in the record of a neck injury prior to 2001, that there was no claim

[00:17:50] Speaker 01:
that mentions a neck injury prior to 2005, that factual finding is not disturbable on appeal.

[00:17:57] Speaker 01:
And this court lacks jurisdiction to make those types of determinations.

[00:18:00] Speaker 01:
And this court has previously articulated that the date and scope of a claim is a factual finding to which it lacks jurisdiction.

[00:18:08] Speaker 01:
And therefore, there's really nothing left at this point.

[00:18:11] Speaker 01:
And unless the panel has any further questions, I'll concede the remainder of my time.

[00:18:16] Speaker 03:
Thank you.

[00:18:17] Speaker 01:
Thank you.

[00:18:23] Speaker 00:
The government continues to refer to two distinct injuries.

[00:18:28] Speaker 00:
The compensation that is sought here is for the resulting disability.

[00:18:36] Speaker 00:
That's what is compensated under 1110.

[00:18:38] Speaker 00:
1110 compensates for resulting disabilities from an injury that is incurred while on active duty.

[00:18:47] Speaker 00:
The only injury incurred is the one resulting from this explosion while he was on active duty.

[00:18:53] Speaker 00:
that now impose upon a veteran the obligation to differentiate his injuries, he doesn't make a claim under VA form 21.526 for compensation for injuries.

[00:19:07] Speaker 00:
He makes a claim for compensation for resulting disabilities.

[00:19:11] Speaker 00:
In this case, before the board was the question of whether or not there was an entitlement to a

[00:19:22] Speaker 00:
rating based upon the entirety of the spot.

[00:19:27] Speaker 00:
This is injury to the spot and under the rating from the board he got a 100% rating based upon the combined effects of the

[00:19:40] Speaker 00:
ankylosis that appears in his spine as a result of both of these areas of the spine.

[00:19:47] Speaker 00:
That indicates that what the VA is rating is not an injury, but a disability.

[00:19:54] Speaker 00:
And the compensation to which Mr. and the effective date for which Mr. Clifton is entitled to is based upon whether or not there is or isn't, was or wasn't

[00:20:05] Speaker 00:
an ongoing, continuous prosecution of the claim for the injuries he sustained in service.

[00:20:12] Speaker 00:
And those injuries include and must be encompassed in

[00:20:16] Speaker 00:
any award that is granted during the course of that.

[00:20:20] Speaker 00:
That is why 3.156B is relevant because that's a regulatory provision by the Secretary under his 501A authority in which the Secretary has articulated that if there is new and material evidence received during the pendency of a claim, and that's what happened here,

[00:20:41] Speaker 00:
They got new and material evidence based upon Mr. Clifton's 2001 medical records and then confirmed by the 2003 VA examination that there was another injury to his back that he should be compensated for.

[00:20:59] Speaker 00:
The VA agreed to compensate.

[00:21:02] Speaker 00:
The question now is the appropriate effective date.

[00:21:05] Speaker 00:
And we believe that there is a significant distinction between the injuries here.

[00:21:13] Speaker 00:
But that should not affect the ability to obtain an effective date under the veteran-friendly criteria provided by Congress.

[00:21:25] Speaker 00:
That's just for the questions from the panel.

[00:21:28] Speaker 03:
Thank you, Mr. Vetter.

[00:21:29] Speaker 00:
Thank you very much.