[00:00:00] Speaker 01:
We have five cases on the calendar this morning, two from the Court of Veterans' Appeals, one of which has been submitted on the briefs and the other argued.

[00:00:12] Speaker 01:
One from the Claims Court, one from the PTAB, one from the District Court.

[00:00:18] Speaker 01:
Our first case is from the Court of Veterans' Appeals.

[00:00:24] Speaker 01:
Orville Thomas versus Secretary of Veterans Affairs, 2022, 1504.

[00:00:29] Speaker 01:
Mr. Attick.

[00:00:38] Speaker 04:
Thank you, Your Honor.

[00:00:38] Speaker 04:
May it please the Court.

[00:00:39] Speaker 04:
Mr. Thomas asked the Court to find that the Veterans Court erred when it found that he failed to meet his burden of persuasion in showing board error.

[00:00:50] Speaker 04:
Mr. Thomas did, in fact, meet his burden of persuasion before the Veterans Court.

[00:00:55] Speaker 04:
He pled his error with particularity, specifically that the board provided inadequate reasons and bases for its failure to consider an applicable effective date rule under 3.156C.

[00:01:07] Speaker 00:
How is your case distinguishable from Kaiser II?

[00:01:13] Speaker 04:
primarily in the fact that kaiser lays out the substantive the merits of the interpretation of three point one five six c your honor it is not really at issue here beyond that because this case is not procedurally posture the same in other words uh... by the time that kaiser too was decided the board had made findings of fact and law on the issue of three point one five sixty new and relevant

[00:01:39] Speaker 04:
in whole or in part and those were reviewed by the Veterans Court and then ultimately the Veterans Court determination was reviewed here and then ultimately the Supreme Court.

[00:01:49] Speaker 04:
This case is different because we don't have any findings of fact or law

[00:01:53] Speaker 04:
by the board in the first instance, and that's where that finding should have occurred.

[00:01:57] Speaker 04:
There's no mention that there were even new service records in the board decision.

[00:02:01] Speaker 04:
There's no mention of 3.156C whatsoever in the board decision.

[00:02:06] Speaker 03:
Was there any argument that once the service records were submitted to the board that they were relevant to the PTSD claim?

[00:02:15] Speaker 04:
To my knowledge, the only argument made before the board was in a written statement by the veterans representative in December of 2017 that appears at, I believe it's at record, appendix 103.

[00:02:29] Speaker 04:
And in that, council for appellant told, wrote that they believed that 3.156C applied because the new records were new and relevant to the reasons for the denial of the 1971 ratings decision.

[00:02:44] Speaker 04:
and that the board should consider them for the effective date.

[00:02:47] Speaker 04:
I don't know that there was any argument made as to the relevance to the PTSD claim, but I don't know that that was necessary for counsel to have made that argument before the board.

[00:02:58] Speaker 03:
It's a non-adversarial system before the board, and all that's required under the regs at the time in the legacy system is... But there is a difference between making an argument and simply stating, here's some new service records that are related to my prior claim for PTSD.

[00:03:14] Speaker 04:
Certainly there is, Your Honor, and I would agree that an argument, should this case go back, an argument to the board as to why those are relevant would be helpful to the board in making a determination.

[00:03:23] Speaker 03:
Is there any minimum or maximum levels of argument that have to be made in order for 3.156 to invoke?

[00:03:33] Speaker 04:
If you look at the Veterans Court's history,

[00:03:37] Speaker 04:
uh... what they've historically required is that that regulation be potentially applicable and the mere existence of a good outline several non-precedential cases where the board has applied that that said that it's the existence of those service records which triggers the discussion of it

[00:03:53] Speaker 04:
Not necessarily the finding that there's an earlier effective date entitlement, just the discussion of it by the board.

[00:03:58] Speaker 04:
So that is the minimum threshold to discuss the issue of law in that case, whether or not 3.156C applies.

[00:04:06] Speaker 04:
And that's what's missing in this case, is any discussion whether that applies.

[00:04:09] Speaker 04:
We don't know if the board, maybe they didn't even see these records.

[00:04:13] Speaker 04:
Maybe they saw them and thought that they weren't new.

[00:04:16] Speaker 04:
maybe they thought they weren't relevant or that they didn't contribute in whole or in parts to the basis for, to the change in the basis for denial.

[00:04:23] Speaker 04:
We don't know that because the board never explained to the reasons why it never addressed this regulation in the first instance.

[00:04:29] Speaker 01:
Counsel, we're all aware that veterans cases take a long time.

[00:04:36] Speaker 01:
They go up and down and veterans wait forever for a final decision.

[00:04:41] Speaker 01:
And I'm wondering if

[00:04:44] Speaker 01:
An appeal like this is more like a, no offense, but sort of lawyers working in the interstices, poking at technicalities.

[00:04:57] Speaker 01:
The RO found that there was no evidence to counter the determination that the problems were due to unstable personality rather than PTSD.

[00:05:09] Speaker 01:
The Veterans Court said OK.

[00:05:14] Speaker 01:
There was failure to mention 3.156C.

[00:05:23] Speaker 01:
But if we send it back, isn't it going to result in the same determination?

[00:05:29] Speaker 01:
I mean, two tribunals have decided that there was no showing that it was due to PTSD.

[00:05:39] Speaker 04:
you're right appreciate the concern of the of the length of time that this case has been opening i was commenting to the council that the veterans first claim was filed just about a year before i was born uh... so it is a very long process it is very arduous uh... and and the concern here is that while the r l may have made comments as to the applicability of these new service records and while the court itself may have made some commentary on it the one forum that's required by law to do that is the board

[00:06:07] Speaker 04:
and the board did not do that and that's what we're asking for here.

[00:06:10] Speaker 04:
I think that veteran is entitled to this as a matter of law as a statement of the material of the adequacy of the reasons and bases for material issues of law and fact by the board so that he can then in turn go to the court if he disagrees with those and pursue his appeal there under some standard of judicial review.

[00:06:28] Speaker 04:
Here in this case we have no idea what standard to argue at the veterans court because we don't know why the board

[00:06:34] Speaker 04:
didn't consider these.

[00:06:35] Speaker 04:
And that's what the law requires.

[00:06:37] Speaker 04:
Certainly, the VA did address it in the statement of case.

[00:06:40] Speaker 04:
In the VA 9, coupled with the statement from the representative just three months earlier, it was clearly at issue before the board, and the law requires the board to address that.

[00:06:49] Speaker 01:
The Court of Appeals said that the board found no evidence of an unadjudicated claim for service connection, the PTSD between a particular period,

[00:07:02] Speaker 01:
that might justify an early effective date, but noted it did not address 3.156C.

[00:07:11] Speaker 01:
So we send it back and address 156C.

[00:07:14] Speaker 01:
Same result.

[00:07:17] Speaker 04:
It's impossible to know, Your Honor.

[00:07:19] Speaker 04:
It's impossible to know.

[00:07:20] Speaker 04:
It's very possible that the board could look at this and say that, in fact, these records are new.

[00:07:24] Speaker 04:
that they are relevant to the prior denial and the fact that the basis for the prior denial uh... in this case in in april of seventy one was that the veteran had uh... some uh... developmental emotional instability suggesting a pre-existed service in these new service records show a very stable emotional person up until this plane wreck in nineteen sixty one so there's a strong mark where they're i'm intrigued with the statement that uh... george warren read uh... whether the court of veterans affairs claims

[00:07:54] Speaker 03:
made a factual finding that that's a statement of a factual finding.

[00:07:59] Speaker 03:
Do you have anything to say to that?

[00:08:02] Speaker 04:
I think the court was careful to say that it wasn't making a finding a fact.

[00:08:07] Speaker 04:
I think in reality it did.

[00:08:09] Speaker 04:
I think in reality it said that these records weren't relevant.

[00:08:13] Speaker 04:
because if if it had gone a different direction it would have to remand to address further the regulation but it wasn't the court's job to do that effectively what's happened here is that the cvc the veterans court has reviewed a decision the board never made and in doing so has violated in some respects the chennai doctrine we didn't see that specifically because the standard review in the application of this how that the court did that and so i think from my assessment

[00:08:39] Speaker 04:
that the court did, in fact, make a finding of fact and did, in fact, conclude that 3.156C did not apply because it believes that the records aren't relevant and it believes.

[00:08:49] Speaker 04:
But it was careful to say that it did not.

[00:08:51] Speaker 04:
And that's the ambiguity that's problematic in this decision, is that we don't understand the factual basis for the failure to consider this particular regulation.

[00:09:01] Speaker 04:
The court cannot make findings of fact in the first instance as a matter of statute.

[00:09:08] Speaker 04:
and they can only review the ones the board did.

[00:09:10] Speaker 04:
We don't have either of those things in this situation.

[00:09:13] Speaker 04:
And so those have both prejudiced Mr. Thomas, specifically the Veterans Court decision prejudices him because it limits his ability to get a finding of fact which can be reviewed by the Veterans Court or a determination if the board in fact believes that this regulation doesn't apply because the records aren't favorable

[00:09:32] Speaker 04:
and wants to make that determination and say, these records don't appear favorable to him, so we're not going to apply 3.1560.

[00:09:39] Speaker 04:
That's a determination of law that the board should make and allow us to review before the Veterans Court.

[00:09:46] Speaker 04:
And so we're entitled to that to be able to understand.

[00:09:48] Speaker 04:
Now, it could be, Judge Laurie, that the board does come back and makes a very thorough analysis and explains in a very persuasive manner that the appellate might look and say, I accept that.

[00:09:58] Speaker 04:
and would not appeal.

[00:09:59] Speaker 01:
It could very well happen.

[00:10:02] Speaker 04:
It could very well happen.

[00:10:04] Speaker 04:
I would like that to happen, at least, regardless how it turns out.

[00:10:06] Speaker 04:
I would like to see the board have that kind of analysis, because I think that's what the veteran is entitled to statutorily, is a decision that lays out what are the material issues of law and fact.

[00:10:16] Speaker 04:
How are we reasoning these so that the veteran can look at that and see if there's been an error and determine whether he wants to appeal to the Veterans Court?

[00:10:24] Speaker 04:
As it stands now, he goes to the Veterans Court, and he's basically having to shoot in the dark to find some thing.

[00:10:30] Speaker 04:
He could have argued in his brief to the Veterans Court that these records were, in fact, relevant.

[00:10:37] Speaker 04:
And the court might have looked and said, well, you didn't address whether they in whole or in part contributed.

[00:10:42] Speaker 04:
And it becomes a guessing game at the Veterans Court.

[00:10:44] Speaker 04:
And this is not supposed to be a trap for the unwary, particularly at a federal appellate court.

[00:10:49] Speaker 04:
We should adhere to those standards of review.

[00:10:51] Speaker 04:
And so we ask this court, I see I'm into my rebuttal time.

[00:10:55] Speaker 04:
I'd like to reserve the remainder of time for rebuttal, unless the court has further questions.

[00:10:59] Speaker 01:
Fine.

[00:11:00] Speaker 01:
Thank you, Mr. Addy.

[00:11:02] Speaker 01:
Mr. Hellman.

[00:11:21] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:11:24] Speaker 02:
This Court should dismiss Mr. Thomas' appeal for lack of jurisdiction because the Veterans Court's application of established precedent from this Court to the facts of Mr. Thomas' case is not reviewable by statute.

[00:11:38] Speaker 02:
38 U.S.C.

[00:11:40] Speaker 02:
7292 precludes this Court from reviewing factual findings.

[00:11:44] Speaker 00:
It sounded like the opposing counsel was making a legal argument.

[00:11:47] Speaker 00:
Why do you contend he isn't making a legal argument?

[00:11:50] Speaker 02:
right now.

[00:11:53] Speaker 02:
For several reasons, Your Honor.

[00:11:56] Speaker 02:
His legal argument is really the application of this.

[00:12:02] Speaker 02:
It's whether Kaiser applies or not.

[00:12:05] Speaker 02:
I suppose writ large that could be a legal argument.

[00:12:08] Speaker 02:
But he's really challenging the facts and how the Veterans Court applied Kaiser and whether the board did and what the RO did.

[00:12:15] Speaker 02:
Those are, at most, the application of lots of fact, which is also outside of this court's jurisdiction.

[00:12:20] Speaker 02:
So he's not contrast the Kaiser case where there's a question of what relevant means in the context of relevant service department records.

[00:12:29] Speaker 02:
That was a legal question that this court reviewed.

[00:12:32] Speaker 02:
Here, that question has already been addressed.

[00:12:35] Speaker 02:
He's essentially saying, well, Kaiser doesn't apply or does apply, but that's the application of law to fact.

[00:12:44] Speaker 02:
So it's one step removed from that more abstract general legal proposition.

[00:12:48] Speaker 03:
Who made that decision?

[00:12:50] Speaker 02:
I'm sorry, Judge.

[00:12:51] Speaker 03:
Who made that decision in this case?

[00:12:54] Speaker 02:
That the reconsideration provision of 3.156C does not apply.

[00:12:58] Speaker 02:
Two tribunals, Your Honor.

[00:13:01] Speaker 02:
First, the RO, and this is at Appendix 99.

[00:13:05] Speaker 02:
Mr. Thomas's attorney at the regional office argued that there should be reconsideration.

[00:13:12] Speaker 02:
And the RO thoroughly considered the service department records and said,

[00:13:17] Speaker 02:
it doesn't apply because it doesn't go to the basis for the denial of the claim in 1971.

[00:13:22] Speaker 02:
Then the Veterans Court, I believe it was Judge Laurie, referred to part of that judgment, said that 3.156C does not apply because the service department records don't go to the basis for the denial.

[00:13:39] Speaker 02:
In fact, Mr. Thomas still doesn't say how those records are relevant.

[00:13:43] Speaker 02:
He never makes a relevance argument, which is required by

[00:13:46] Speaker 03:
uh... by three o one five six c because he required to make a relevant argument yes the service department records have to be relevant kaiser to establish that's different if he if he submits the records and says these are my service records and does he have to do anything more than that he submits his service records but the service records have to be relevant in other words okay that's my first question to you who decides whether they're relevant or not it could be any

[00:14:16] Speaker 02:
any number of tribunals.

[00:14:18] Speaker 02:
Here the RO considered those.

[00:14:21] Speaker 02:
It could be a factual finding.

[00:14:22] Speaker 03:
The RO reviewed the records and made a factual finding that they were not relevant?

[00:14:29] Speaker 02:
That's correct.

[00:14:30] Speaker 03:
Where in the record is that?

[00:14:31] Speaker 02:
This is at Appendix 99, where the RO says that Mr. Thomas' attorney argued that 38 CFR 3.156C demonstrates entitlements on an earlier date.

[00:14:43] Speaker 02:
And the RO says, no, that's not correct.

[00:14:46] Speaker 02:
These are not relevant service department records, because they don't counter the determination that

[00:14:54] Speaker 02:
occurred in 1971.

[00:14:55] Speaker 03:
That earlier denial of this PTSD claim, much like in Kaiser, the earlier... And where is the regulation that imposes an obligation on the veteran to make the relevancy argument?

[00:15:09] Speaker 02:
The regulation is 3.156C, Judge, that says that service department records have to be relevant.

[00:15:15] Speaker 03:
So he... But you're saying that it's the veteran that's got to make that argument.

[00:15:23] Speaker 02:
Well, I'm not saying the veteran necessarily has to make that argument.

[00:15:29] Speaker 02:
The records have to be relevant under regulation.

[00:15:31] Speaker 03:
I was asking you what's the limit of the argument that the veteran has to make, other than to submit the records and say, these apply to my PTSD disability, and they go to the issue of a service connection for an earlier data service connection.

[00:15:51] Speaker ?:
Sure.

[00:15:52] Speaker 02:
at the ORO level doesn't have to articulate because the veterans sometimes are not represented by attorneys, although in this case, Mr. Thomas was represented by an attorney.

[00:16:00] Speaker 03:
But he did not have to articulate.

[00:16:01] Speaker 02:
He did not have to articulate.

[00:16:03] Speaker 02:
But the ORO considered the regulation and said that these service department records are not relevant.

[00:16:10] Speaker 02:
And so once you have that determination that they're not relevant, 3.156C is not triggered.

[00:16:16] Speaker 03:
It's not just That's enough.

[00:16:18] Speaker 03:
That's all the ORO has to do is to say they're not relevant.

[00:16:22] Speaker 03:
Would I have to provide a reason or any basis?

[00:16:26] Speaker 02:
The RO here did provide a reason, although I suppose if the reason is apparent from the face of the records, much like here, they don't go to the denial of the earlier claim, then the RO, it's sufficient, I would say, for the RO to say they're not relevant because the reason is apparent from the face of the records.

[00:16:48] Speaker 00:
In terms of just the timeline on Kaiser II, my understanding is it was a decision issued after the board issued its order in Mr. Thomas's case.

[00:16:57] Speaker 00:
Do you agree with that timeline?

[00:17:02] Speaker 02:
Kaiser II was, that's right.

[00:17:04] Speaker 02:
That said, Kaiser I, which also held, the issue in Kaiser was what is meant by relevant.

[00:17:13] Speaker 02:
And the first panel of this court to consider Kaiser

[00:17:17] Speaker 02:
said that the relevance requirement means that the service department records have to be relevant.

[00:17:28] Speaker 02:
They have to matter to the basis for the denial.

[00:17:30] Speaker 02:
Now, the first panel did that in light of deference to the agency.

[00:17:36] Speaker 02:
Supreme Court granted cert on that and decided only the deference question.

[00:17:41] Speaker 02:
It didn't decide what 3.156C means.

[00:17:44] Speaker 02:
In fact, that was one of the grounds

[00:17:47] Speaker 02:
that they sought CERD on.

[00:17:48] Speaker 02:
And I believe that was not granted.

[00:17:50] Speaker 02:
So it was just the agency deference question.

[00:17:53] Speaker 02:
When it came back to this court, Kaiser II again said relevance.

[00:17:58] Speaker 02:
There was a dispute.

[00:18:00] Speaker 02:
Judge, right now you were on that panel as to how to define relevance and where that came from.

[00:18:08] Speaker 02:
But the operative question here, Judge Cunningham, is whether service department records have to be relevant.

[00:18:16] Speaker 02:
has been a requirement since Kaiser I. And so the board and the RO, I mean, that requirement is part of the regulation.

[00:18:23] Speaker 02:
It says the service department records have to be relevant service department records.

[00:18:28] Speaker 02:
And that's what the RO concluded here in 2018.

[00:18:31] Speaker 02:
That's what the Veterans Court affirmed when it looked at it later.

[00:18:35] Speaker 03:
What was the basis of that decision, that they were not relevant?

[00:18:40] Speaker 02:
The basis is they don't go to the denial of the claim in 1971 because there is no PTSD diagnosis.

[00:18:47] Speaker 02:
much like in the Kaiser case.

[00:18:50] Speaker 02:
The denial was because there was no PTSD diagnosis.

[00:18:53] Speaker 02:
The service department records go to his service, the plane crash, all that.

[00:18:58] Speaker 03:
Those were not part of the consideration of the PTSD, correct?

[00:19:06] Speaker 03:
The first finding.

[00:19:08] Speaker 02:
I'm sorry.

[00:19:09] Speaker 02:
You're referring to which, in Mr. Thomas's case, those service department records

[00:19:17] Speaker 02:
The service department records that he attached in 2014 were not part of the consideration.

[00:19:23] Speaker 02:
But the facts that those service department records contain, specifically the fact of the plane crash, that was known in 1971 when he got his diagnosis.

[00:19:35] Speaker 02:
It was known that he was in a plane crash, that he was one of the few individuals that survived, that nine individuals, some of which had been his subordinates.

[00:19:43] Speaker 03:
You're quoting actual findings that we should find on the record?

[00:19:48] Speaker 03:
this would not make actual for next to the court i mean the the or or the board the is that i understand you're going to show me in the record where the board made findings based on the plane crash where the veteran was sitting on the plane crash the board did not but was not required to the are all in so in how do we know that they even consider just to say that

[00:20:15] Speaker 02:
Well, you know that the RO considered it because it has a discussion of it.

[00:20:20] Speaker 02:
As the Veterans Court pointed out, the board does not.

[00:20:24] Speaker 03:
The board discusses the service records?

[00:20:27] Speaker 02:
The board decision does not discuss the service records.

[00:20:30] Speaker 03:
So they never have been part of the decision of the VA.

[00:20:36] Speaker 02:
That's not correct.

[00:20:37] Speaker 02:
The VA's decision is what the RO did and the board decision.

[00:20:42] Speaker 02:
So the RO expressly considered these service records.

[00:20:45] Speaker 02:
and said they're not relevant.

[00:20:47] Speaker 02:
Now, the board is silent on this regulation and the records.

[00:20:50] Speaker 02:
But that's still part of the VA decision is what the RO did and what the board did.

[00:20:56] Speaker 00:
And in this court's- Do you not dispute that the 38 CFR 3.156C was raised on the record before the board, correct?

[00:21:09] Speaker 02:
So we don't have what was Mr. Thomas's

[00:21:13] Speaker 02:
brief or what he provided to the board specifically was certainly raised his attorney raised it to the RO and the RO considered it and so by that it was reasonably considered it would have been reasonably considered raised to the board but if those service department records aren't relevant that regulation isn't triggered so the board wouldn't the board doesn't have to consider all regulations that aren't applicable and here 3.156c

[00:21:40] Speaker 02:
is not applicable because the service department records weren't relevant.

[00:21:50] Speaker 02:
3.156C is a reconsideration provision that's meant to place the veteran back in the same place he would have been and have these records been available.

[00:22:00] Speaker 02:
But here, the basis for the denial in 1971

[00:22:04] Speaker 02:
It wasn't that there was lack of evidence of a plane crash.

[00:22:08] Speaker 02:
It was that he didn't have a PTSD diagnosis.

[00:22:10] Speaker 02:
And these service department records don't overcome that.

[00:22:14] Speaker 02:
We've not heard an argument yet as to why these records are relevant to the basis for the denial.

[00:22:20] Speaker 02:
Mr. Thomas simply wants sort of an automatic remand to have the more, as Judge Laurie pointed out, dot the I's and cross the T's.

[00:22:28] Speaker 03:
The regulation does require

[00:22:30] Speaker 03:
that the claim be reconsidered, that the VA reconsider upon the submission of relevant official service documents.

[00:22:39] Speaker 03:
Right?

[00:22:39] Speaker 03:
Yes.

[00:22:40] Speaker 03:
They would reconsider.

[00:22:41] Speaker 03:
And you're arguing today that the board made a consideration as to relevancy.

[00:22:49] Speaker 03:
And it sounds to me that you're saying that that, in effect, is the reconsideration.

[00:22:56] Speaker 03:
No, Your Honor.

[00:22:59] Speaker 03:
So first the VA has to establish relevancy.

[00:23:02] Speaker 03:
Then, under your argument, they have to reconsider.

[00:23:06] Speaker 02:
If the records are relevant, they have to reconsider.

[00:23:08] Speaker 03:
They have to win on the issue of relevancy.

[00:23:10] Speaker 02:
Yes.

[00:23:11] Speaker 03:
Show me where in the regulation it says that.

[00:23:13] Speaker 03:
The veterans got to win on the issue of relevancy.

[00:23:17] Speaker 02:
Because the regulation says relevant service department records.

[00:23:21] Speaker 03:
Show me where the veteran has to win on that particular issue.

[00:23:26] Speaker 02:
this is Kaiser too, it says if the records aren't relevant, you don't get reconsideration.

[00:23:31] Speaker 02:
Because otherwise, every time you get a new service department record that's duplicative of what's already been considered, you're going to get reconsideration.

[00:23:40] Speaker 03:
The other side is going to say, we never got the chance to argue relevancy.

[00:23:46] Speaker 03:
And they're going to say, and if that's the case, what would be your response to that?

[00:23:50] Speaker 02:
My response is what I've said several times already is that

[00:23:54] Speaker 02:
they have not argued relevancy.

[00:23:57] Speaker 02:
They've not explained relevancy, and they still don't explain relevancy.

[00:24:00] Speaker 02:
And the Veterans Court pointed that out pretty clearly.

[00:24:03] Speaker 02:
It says they still don't argue how these are relevant.

[00:24:07] Speaker 02:
They seem to think that 3.156c is some sort of automatic reconsideration.

[00:24:12] Speaker 02:
Every time you submit a new slip of paper, you get to go back and have your claim reconsidered.

[00:24:17] Speaker 00:
Why are you, I guess, fundamentally opposed to them

[00:24:21] Speaker 00:
being able to have the remand and get some further explanation on what's going on.

[00:24:25] Speaker 00:
I could see why they'd be concerned because of just how long it takes for these cases to actually get to a conclusion.

[00:24:31] Speaker 00:
But what is your concern?

[00:24:32] Speaker 02:
That's our concern too, Judge.

[00:24:34] Speaker 02:
I mean, remand here would be futile.

[00:24:36] Speaker 02:
It would waste agency resources.

[00:24:37] Speaker 02:
The VA already has a fairly extensive caseload.

[00:24:41] Speaker 02:
For it to go back simply to have yet another tribunal.

[00:24:46] Speaker 02:
I mean, two tribunals have already said these records don't go to the reason your claim was denied.

[00:24:50] Speaker 02:
That's what the law requires, to have yet another intermediate body say the same thing and to have it then come up on appeal.

[00:24:59] Speaker 02:
That waste agency resource is that this is an agency that's trying to help the majority of veterans.

[00:25:05] Speaker 03:
That's because if we remand, the agency is just simply going to dot the rise and cross their T's.

[00:25:10] Speaker 02:
Well, right.

[00:25:11] Speaker 02:
The board is going to say.

[00:25:12] Speaker 03:
That's almost ludicrous.

[00:25:15] Speaker 03:
I mean, why should we overlook?

[00:25:18] Speaker 03:
the misapplication of law in order to ease the administrative burden of the very agency that's supposed to be looking out for the interests of the veterans.

[00:25:28] Speaker 02:
To be clear, Judge Raina, nobody's asking this court to overlook the misapplication of law.

[00:25:33] Speaker 02:
There's been no misapplication of law.

[00:25:35] Speaker 02:
The RO expressly considered the very records that Mr. Thomas presented that were associated with this file.

[00:25:43] Speaker 02:
He had an attorney argue that these records entitle him to an earlier affected date.

[00:25:48] Speaker 02:
The RO said, no, these records aren't relevant.

[00:25:51] Speaker 02:
They don't go to the basis for the denial.

[00:25:53] Speaker 02:
Kaiser II, the law is that the records have to go to the basis.

[00:26:00] Speaker 02:
They have to be relevant.

[00:26:01] Speaker 02:
One of those reasons would be that they go to the basis for the denial.

[00:26:05] Speaker 02:
That's not the case here.

[00:26:06] Speaker 02:
So it's really just an exercise in futility to send this case back.

[00:26:13] Speaker 02:
And if this court has no further questions, we respectfully request that the appeal be dismissed for lack of jurisdiction or affirmed in the alternative.

[00:26:22] Speaker 01:
Thank you, counsel.

[00:26:23] Speaker 01:
Mr. Attick has the final time.

[00:26:32] Speaker 04:
I want to clarify a couple of points that my colleague made.

[00:26:37] Speaker 04:
He indicated that the basis of the prior rating decision in 1971 was the absence of a PTSD diagnosis.

[00:26:45] Speaker 04:
That's not factually accurate.

[00:26:47] Speaker 04:
The basis was that the veteran had a developmental emotional instability.

[00:26:53] Speaker 04:
It did not even mention PTSD.

[00:26:56] Speaker 04:
And the service records that Mr.

[00:27:00] Speaker 04:
Thomas submitted with his claim to reopen in 2014 were part of the RO's consideration.

[00:27:06] Speaker 04:
In fact, at Appendix 73, the RO specifically states records received June 16, 2014 with stressor information.

[00:27:14] Speaker 04:
So it specifically is talking about a PTSD stressor.

[00:27:20] Speaker 04:
The statement in the case did not

[00:27:27] Speaker 04:
mention the word relevance in terms of the agency's finding.

[00:27:30] Speaker 04:
This is somewhat immaterial because the court reviews board decisions, not agency decisions, and certainly not statements of case.

[00:27:36] Speaker 04:
But it didn't find that they were relevant.

[00:27:37] Speaker 04:
It said essentially that they did not contribute

[00:27:41] Speaker 04:
to our reading, did not contribute in whole or part to the reason for the prior denial.

[00:27:46] Speaker 04:
I mean, that's subject to interpretation, and that's why we want the board to comment on this, to be able to say, were these records new?

[00:27:52] Speaker 04:
Were they relevant?

[00:27:53] Speaker 04:
Did they contribute in whole or part?

[00:27:54] Speaker 04:
And give Mr. Thomas an opportunity to see if the VA is making the correct decision, and specifically the BVA.

[00:28:00] Speaker 04:
That's ultimately the case.

[00:28:01] Speaker 00:
I think counsel contends it's all going to be futile if it goes back.

[00:28:04] Speaker 00:
What's your response to that?

[00:28:06] Speaker 04:
How on earth could we possibly know that, Your Honor?

[00:28:08] Speaker 04:
How could we know that?

[00:28:09] Speaker 04:
There's ample reason to believe that we don't have to prove relevance to this court.

[00:28:15] Speaker 04:
Certainly, even if we did, it would be, I think, wasted breath because this court cannot make factual determinations.

[00:28:21] Speaker 04:
but i would tell you there's at least an arguable colorful argument as to the relevance of these records that says you have a conditional emotional instability since childhood and he submitted evidence showing that he's emotionally stable all the way through service up until this accident happens suggest there's at least minor relevance now the court doesn't even need to consider that because we do ask this court to affirm what which mispronounce this i'm sure schaefer says that in order to uh...

[00:28:49] Speaker 04:
provide a material a statement of an adequately reasoned statement of a material issue of law the court has to address reasonable or or or regulations that are potentially applicable if they were addressing evidence and i think we're looking at the collusion standard of favorability of evidence but you were looking at potential applicability the mere existence does not trigger an earlier effective date absolutely not but the mere existence of the other side is arguing that they did make they met their obligations under the the the regulation

[00:29:19] Speaker 03:
You're arguing that they never provided the basis, the decision by which we can even appeal or come back and ask for further action.

[00:29:30] Speaker 03:
If we remand this, and you heard today the expressions that probably what's going to happen is the agency's just going to dot the I's and cross the T's.

[00:29:39] Speaker 03:
They're going to explain why they made their earlier decision.

[00:29:44] Speaker 03:
And so it's kind of like, what's the use argument that's been made?

[00:29:52] Speaker 03:
What's your response to that?

[00:29:54] Speaker 04:
Well, I think, first of all, my first response to that, Your Honor, is somewhat esoteric of, what's the use of any of it then?

[00:30:01] Speaker 04:
If the VA can simply say, we deny this, and ultimately they're going to continue to deny it, what's the use of any judicial review?

[00:30:07] Speaker 04:
The use is that Congress has said that they expect the board to make these findings of material issues or law.

[00:30:12] Speaker 04:
In fact, the board's obligated to comply with that.

[00:30:14] Speaker 04:
The second thing is that, two pieces I would say, is first of all, I can almost assure this court that when this goes back, if this goes back to the board, that there will be argument from the council as to relevance, that they will lay out this argument because we now have the standard in Kaiser II.

[00:30:31] Speaker 04:
even had the v a in their statement case even have the board addressed relevance in writing there could still be a question before this court whether they applied the correct standard if kaiser to change their changes substantially materially we don't know because this case was decided prior to kaiser so we don't even know how the board considered relevance even determined to apply the correct kaiser to standard so that's all the way i think there's really address opposing counsel's argument that's really application of lots of fact as opposed to a legal issue that you're bringing to this court

[00:31:02] Speaker 04:
the differences is is that there has been no finding of fact on three point one five sixty by the board who is the poor part of the agency required to do it without a finding of fact the veterans court cannot apply law to facts that have never been made unless it violates january makes a decision that the board didn't make so there is no fact uh... to to review at the various court and there certainly is no facts to review here the court can't

[00:31:30] Speaker 04:
So that would be the difference, Your Honor, is that we're specifically making a legal error argument saying that the court exceeded its... Let me not say it that way.

[00:31:41] Speaker 04:
The court failed to apply the correct standard of review and that is a pure question of law.

[00:31:48] Speaker 04:
And with that, we ask the court to reverse the decision of the Veterans Court and remand it for further adjudication.

[00:31:56] Speaker 04:
from the board to determine whether or not 3.1560 does apply and if so or if not how.

[00:32:02] Speaker 04:
Thank you, Your Honor.

[00:32:04] Speaker 04:
Thank you, Counsel.

[00:32:05] Speaker 04:
The case is submitted.