[00:00:00] Speaker 03: Our next case is live reading by Assistant Secretary of Veterans Affairs, 2023-1840. [00:00:06] Speaker 03: Mr. Coppenter, when you are ready. [00:00:44] Speaker 04: May police court, Kenneth Carpenter, appearing on behalf of Mr. Larry Williams. [00:00:49] Speaker 04: The issue in this case has to do with whether or not the Veterans Court relied upon a misinterpretation of the [00:00:56] Speaker 04: then extant regulation at 38 CFR 3.156A. [00:01:03] Speaker 04: However, the parties below referred to it as 3.156B, which is where it is now located in the regulatory scheme. [00:01:10] Speaker 04: And just for the sake of consistency, I think it's easier for us to just refer to it as 3.156B for the purposes of this argument as well. [00:01:20] Speaker 04: Your Honors, in this case, the regulatory requirement set out in that regulatory provision has been interpreted by this court in its decisions in both Bond and Barat, in which this court made clear that the failure to [00:01:46] Speaker 04: address the requirements of that regulation when not met, continue the claim as a pending claim. [00:02:03] Speaker 04: There is no reference to the [00:02:13] Speaker 03: of the [00:02:19] Speaker 04: Yes, there is, Your Honor, and there was an acknowledgement that that evidence was received. [00:02:24] Speaker 04: But what this court said in Bond and Barad was is that it requires the VA to treat new and material evidence as if it was filed in connection with the pending claim, and that the VA must assess any evidence submitted during the relevant periods and make a determination as to whether or not that evidence does or does not constitute new and material evidence related to the original claim. [00:02:48] Speaker 04: That simply did not happen here. [00:02:51] Speaker 04: I direct the Court's attention to Appendix 36, the reason for the decision in the SOC, and that reason is simply stated as the record of schizophrenia in service or within one year of the presumptive period after discharge is, excuse me, that there is no record of that. [00:03:14] Speaker 04: That is not in fact what the [00:03:18] Speaker 04: original decision said in its denial, although it's very close to it, but the. [00:03:28] Speaker 02: So, Council, looking at the Veterans Court's decision, what do you think is the best representation in your mind of this alleged misinterpretation? [00:03:38] Speaker 04: When the Veterans Court stated that there needed to be [00:03:44] Speaker 04: some reconciliation on the part of Mr. Williams with the fact that the RO issued a statement of the case in June of 1979. [00:03:55] Speaker 04: That is simply not a requirement of either the regulation or this is, quote, interpretation of the application of that regulation by the VA when they receive new and material evidence [00:04:09] Speaker 04: during the appeal period. [00:04:12] Speaker 04: And that's what happened here prior to the issuance of the statement of the case. [00:04:17] Speaker 04: And the statement of case does in fact make reference to it. [00:04:20] Speaker 04: But what it does not do is what the regulation requires and what this court found that the regulation required, which is to make a determination as to whether or not the evidence received was new and material and relates to [00:04:36] Speaker 04: the original claim. [00:04:38] Speaker 04: And the problem here, Your Honor, is when you compare the decision made that denied the benefit, and that's in the record at 22, I believe. [00:04:55] Speaker 04: I'm sorry. [00:04:57] Speaker 04: And at the bottom of page 24, the D, which presumably stands for decision, simply says SR, presumably referring to service record, are negative for treatment or diagnosis of schizophrenia. [00:05:12] Speaker 04: And there is no medical evidence showing schizophrenia manifesting itself to a compensable degree within one year following separation. [00:05:21] Speaker 04: In this case, there was evidence in the original consideration of a notation of possible schizophrenia, but there was no indication that that was a firm diagnosis until that additional evidence was received. [00:05:41] Speaker 04: And therefore, and again, this is in 1979, where there was no judicial review. [00:05:47] Speaker 04: So there was not an opportunity for Mr. Williams to take an appeal at that point in time because there was no court. [00:05:55] Speaker 04: There was no place to take an appeal other than going to the board, which is why the importance of this regulation was so critical in the time period before judicial review to be complied with. [00:06:08] Speaker 04: And the suggestion by the lower court [00:06:11] Speaker 04: that there is some need on the part of a person claiming benefit under this regulation has to reconcile with the fact that there was the issuance of an SOC is simply immaterial. [00:06:24] Speaker 01: Can I ask you, let me tell you my concerns and then tell me what I'm misunderstanding, if anything. [00:06:33] Speaker 01: I look at the SOC, and at page 835, under the date February 20, 1979, it does seem to include what we're referring. [00:06:44] Speaker 01: This is the new and material evidence. [00:06:46] Speaker 01: That's correct. [00:06:47] Speaker 01: We'll call it the new evidence. [00:06:48] Speaker 01: And the fact that it's listed here under something that's called summary of evidence and adjudication actions, starting at page 833, [00:06:57] Speaker 01: Why isn't that a fair inference? [00:07:01] Speaker 01: That it was not only, you know, here's the new evidence, we're considering it material, it's under the heading summary of evidence, so we're showing you that it was considered, and then the conclusion is there's no record of schizophrenia in service or within the one-year presumptive period after discharge, because this evidence provided is after the first year. [00:07:22] Speaker 01: the February 20, 1979. [00:07:24] Speaker 04: Well, Your Honor, if you'll back up to Appendix 33 of the statement of the case, the header is Summary of Evidence and Adjudication Actions. [00:07:34] Speaker 04: And I do not disagree that at page 35, that is an accurate summary of the evidence. [00:07:42] Speaker 04: I vigorously disagree that there is any reference [00:07:45] Speaker 04: to what adjudicative actions were taken. [00:07:49] Speaker 04: And the adjudicative actions were the actions that are mandated by the secretary's own regulation. [00:07:56] Speaker 04: The secretary cannot disavow a regulation in favor of a statutory obligation to issue a statement of the case, which simply informs the veteran what the decision was, not the decision on the new and relevant evidence. [00:08:12] Speaker 01: I understand what you're saying. [00:08:13] Speaker 01: What you're saying is that [00:08:14] Speaker 01: you're saying the SOC can't be the place where the veteran is informed of the determination on new and material evidence. [00:08:24] Speaker 01: We've got some recent case law, I think, that says that something showing that the evidence was considered can be sufficient to meet the requirement of borrown and bond, right? [00:08:37] Speaker 01: We do. [00:08:37] Speaker 01: But it's your view that here, [00:08:40] Speaker 01: The there's no magic word to card, I think, is part of what said in the briefing here repeatedly. [00:08:48] Speaker 01: But so your view is that this SOC in reference on page 835 is not good enough, not only because it's in the SOC, but also because there should have been a more clear statement of how the evidence was treated. [00:09:04] Speaker 01: I'm just trying to understand. [00:09:05] Speaker 04: What this court said at bond at page 1367 of that decision is that the evidence must be assessed. [00:09:18] Speaker 04: There was no assessment made of that evidence. [00:09:21] Speaker 04: There was a recognition of the evidence, and it didn't even indicate in the SOC that it didn't change the outcome. [00:09:30] Speaker 04: There was no acknowledgment that there was some causal connection between the recitation of this additional evidence and the fact that they repeated merely verbatim what was in the original decision. [00:09:44] Speaker 03: How about Appendix 36? [00:09:46] Speaker 03: Reasons for decision. [00:09:48] Speaker 03: There was no record of schizophrenia in service over then the one year presumptive period after discharge. [00:09:55] Speaker 04: And that's the presumptive provision within one year. [00:10:01] Speaker 04: This was not evidence within one year. [00:10:04] Speaker 04: That sentence is not related to... But that's right. [00:10:06] Speaker 01: The point is that because it wasn't within one year, there is no evidence within one year. [00:10:14] Speaker 04: But Your Honor, the requirements for entitlement to compensation are that there is a disability. [00:10:22] Speaker 04: This evidence was evidence of a post-service disability that could have been awarded on a direct basis if an assessment [00:10:33] Speaker 04: that had been made as required under the regulation so as to inform Mr. Williams in 1979, what needed to be done in order to be able [00:10:52] Speaker 04: medical record that gave him a confirmed diagnosis of schizophrenia for a disability from a psychosis that was currently disabling. [00:11:02] Speaker 04: In this case, I believe it was about five years after the. [00:11:07] Speaker 01: Misunderstanding, but I thought at the time of this SOC, the law was such that in the case of schizophrenia, in order to be able to show that it was connected to your service, there had to be an occurrence of schizophrenia [00:11:21] Speaker 01: in service or within one year of the presumptive period after service. [00:11:29] Speaker 01: I don't see any evidence tying [00:11:35] Speaker 01: the diagnosis of schizophrenia to the service. [00:11:39] Speaker 04: No, Your Honor. [00:11:40] Speaker 04: But he had the right to that assessment that it was related to the original claim of entitlement to compensation for schizophrenia, not on a presumptive basis, but on a direct basis. [00:11:53] Speaker 04: This case in Combi said that if the presumption doesn't apply- You're saying that the reading was SOC. [00:12:00] Speaker 01: You can't tell, but they thought it was material. [00:12:03] Speaker 01: Is that what you're saying? [00:12:06] Speaker 04: or that there was a current diagnosis. [00:12:08] Speaker 04: There's no acknowledgment in the reason for the decision that, in other words, if the reason for the decision had been we acknowledge that there is now a confirmed diagnosis, but there is no nexus evidence relating that condition to service, then that would have been a reasonable inference that they had considered it. [00:12:31] Speaker 01: What about the next sentence? [00:12:34] Speaker 01: It says the disability is shown. [00:12:38] Speaker 01: You see it says the disability is shown. [00:12:41] Speaker 01: So there is a disability shown. [00:12:44] Speaker 01: does not meet schedule requirements for non-service connected pension. [00:12:48] Speaker 01: I mean, does that help? [00:12:50] Speaker 01: No. [00:12:50] Speaker 01: At least they're acknowledging there's a disability shown. [00:12:53] Speaker 04: Because the original claim was for both compensation and pension. [00:12:59] Speaker 04: In the original denial, this identical sentence. [00:13:03] Speaker 01: Your second sentence relates to a different issue. [00:13:05] Speaker 01: For the pension, yes. [00:13:06] Speaker 01: OK. [00:13:08] Speaker 04: You want to come here for a moment? [00:13:10] Speaker 04: I'm obviously into my head at the time. [00:13:11] Speaker 04: I appreciate it. [00:13:23] Speaker 00: May it please the court. [00:13:27] Speaker 00: I see what we just heard was. [00:13:30] Speaker 00: I guess an attempt to describe the issue that was open at the time the RO looks at the case again and then issues a statement of the case as a question about the presence of a disability. [00:13:42] Speaker 00: But I think, as Your Honor demonstrated in going through the record, the question that was confronting the VA at the time was whether there was an in-service event and, accordingly, a nexus with the mental challenges that the individual was facing in the 1978-79 time period. [00:13:59] Speaker 00: And the decision in the 1978 regional office decision was that there was no evidence put forth of any in-service event or an event within one year of service that could have formed the basis of the second prong of service connection, which is the in-service prong. [00:14:17] Speaker 00: And of course, as we all know, the three main prongs of service connection are present disability, in-service event, [00:14:23] Speaker 00: and a nexus between the first two. [00:14:26] Speaker 00: So the decision in 1978 says there's no evidence that this individual had the schizophrenia during the time of service or within one year. [00:14:35] Speaker 00: That's the SOC. [00:14:38] Speaker 00: I'm not at the SOC yet. [00:14:39] Speaker 00: I'm going to just walk through the timeline. [00:14:42] Speaker 00: Appendix 24 is actually what I'm talking about, which is the decision in 1978, which then resulted in a notice of disagreement being filed in January 1979. [00:14:53] Speaker 00: The 1978 decision, Pennix 24, holds that, and you can actually not even look there because you can look at Pennix 35, which we have been discussing, which is the statement of the case, that characterizes on the top of page 35 what that decision said. [00:15:08] Speaker 00: And if you look, the last sentence talks about was not incurred or aggravated by service. [00:15:13] Speaker 00: That's the in-service event prong. [00:15:15] Speaker 00: What about? [00:15:16] Speaker 01: What about page 824, you know, in that bottom paragraph, first line, it says SR or negative for treatment or diagnosis of schizophrenia? [00:15:26] Speaker 00: There are two things that are going on in this claim stream. [00:15:30] Speaker 00: The first one is that the individual comes in seeking pension benefits, non-service connected. [00:15:37] Speaker 00: the nature of his schizophrenia would actually have some role in whether or not he could qualify for a pension benefit. [00:15:44] Speaker 00: If he could establish that, it affected his ability to work and that decision and even the SOC talked about the fact that the evidence didn't rise to the level of that he couldn't work. [00:15:56] Speaker 00: So that's the sort of pension benefit part of it. [00:15:59] Speaker 00: During the processing of the claim, a question of whether or not the schizophrenia could be service-connected arose. [00:16:05] Speaker 00: That's where we're talking about the in-service prong. [00:16:08] Speaker 00: And that's really the issue here, because eventually this whole case is about an earlier effective date for service-connected mental condition. [00:16:17] Speaker 00: So that's the part of the decision at Appendix 24 and, again, in the SOC that's relevant here. [00:16:25] Speaker 00: It's did this schizophrenia as the BA understood it at the time and it's very important here factually. [00:16:34] Speaker 00: I know we don't like talking about facts, but the history of this case is clear. [00:16:38] Speaker 00: There was a basis put forth by Mr. Williams in the late 70s for why he thought he was suffering from mental problems having to do with a car train accident. [00:16:53] Speaker 00: That's exactly the point I'm going to end up with. [00:16:59] Speaker 00: I can give you the short answer and then we can go. [00:17:02] Speaker 00: The short answer is that the SOC dealt with the outstanding issue with respect to the service connection question, and that was in service event. [00:17:11] Speaker 00: And it said clearly, I think Judge Doyle and Judge Lurie went through and described that the SOC clearly deals with that, clearly deals with the new evidence and points out that that new evidence does not address [00:17:23] Speaker 00: the open question left over from the 1978 decision, which is whether the schizophrenia arose during or within one year of service. [00:17:32] Speaker 02: I mean, the way I at least heard Mr. Carpenter explaining his argument was that the evidence did summarize, but it seemed like he wanted a little more said about it than what was stated in the SOC. [00:17:46] Speaker 00: The thing we have to take into account when we're talking about SOCs is what are they for? [00:17:53] Speaker 00: This is what we talk about in our brief. [00:17:57] Speaker 00: The very first argument I ever presented in this case, or in this court 31 years ago this month, [00:18:03] Speaker 00: I explained what an SOC was, and it is a decision document, no longer, given the new change in the accelerated procedures. [00:18:13] Speaker 00: But the way that the process works, we described for the Hamilton Court and for the Wilson Court, the claim, submits a claim, the VA develops it, and they issue a decision. [00:18:22] Speaker 00: If the claimant is not satisfied with it, he files a Notice of Disagreement. [00:18:27] Speaker 00: And sometimes that Notice of Disagreement contains identification of new evidence or may attach it. [00:18:33] Speaker 00: Under the statute, as it was written then, 7105D, and the implementing regulations, 19.26, 19.29, and even 19.31 is helpful because it kind of explains that it's a decision document. [00:18:46] Speaker 00: The VA regional office has to re- [00:18:51] Speaker 00: has to develop the case, look, get the new evidence like it does here as described on Appendix 35, and it has to reconsider. [00:19:00] Speaker 00: This is a 3.156 examination. [00:19:02] Speaker 00: It doesn't use that language because it's independently required under the regulations and statutes that I just identified. [00:19:08] Speaker 00: But the analysis is the same. [00:19:11] Speaker 00: The big point of Baroud and Bond was, when I get new evidence, I'm not satisfied. [00:19:18] Speaker 00: The Bond court nor the Baroud court were satisfied with the record evidence demonstrating that not only did the RL decide whether it was new, but was it material. [00:19:31] Speaker 00: And in order to decide whether it's material, you've got to look at it again in conjunction with the existing record. [00:19:37] Speaker 00: That's exactly what an SOC is designed to accomplish. [00:19:39] Speaker 01: What do we do with the fact that at A32 it says, the statement of the case is not a decision on the appeal you have initiated? [00:19:50] Speaker 00: Great question. [00:19:51] Speaker 00: It's a decision from a regional office, but it's not a decision from the board. [00:19:55] Speaker 00: And that's why that language is in the question. [00:19:59] Speaker 00: If you go through that appendix, [00:20:02] Speaker 00: 31 and appendix 32. [00:20:04] Speaker 00: Appendix 31 is the cover sheet that goes out with a statement of the case. [00:20:07] Speaker 00: And of course, there's the language that Mr. Williams points to in his reply, appendix 32. [00:20:13] Speaker 00: Again, this is exactly what I'm talking about here. [00:20:15] Speaker 00: The process, the NOD comes in. [00:20:18] Speaker 00: Now the ball is in the VA's court. [00:20:20] Speaker 00: They've got to go out and get the evidence. [00:20:21] Speaker 00: They've got to gather the evidence. [00:20:23] Speaker 00: They've got to reconsider the evidence. [00:20:24] Speaker 00: It's exactly like what a 3.156 analysis would be. [00:20:28] Speaker 00: And then they have a choice. [00:20:30] Speaker 00: And this is why it's a decision document, because if they're convinced by this new evidence, they award the claim under both the statute and the regulations. [00:20:39] Speaker 00: And if someone's going to stand up and say that that's not a decision from the VA, I don't know what a decision is. [00:20:45] Speaker 00: Only when that decision is not to award the claim is the VA required by regulation, 1926 at the time and 1929, to issue a statement of the case. [00:20:55] Speaker 00: And that statement of the case has to set forth for the claimant all of the stuff that happened up to that point. [00:21:02] Speaker 00: both pre and post NOD, so that the claimant can then file his substantive appeal document. [00:21:09] Speaker 00: And then the package goes to the board for appeal. [00:21:12] Speaker 01: Can I ask you something? [00:21:13] Speaker 01: What should a veteran or a skilled person, I guess, looking at the statement of the case, understand this to be a conclusion on? [00:21:22] Speaker 01: And specifically, does this, by virtue of listing the hospitalization record, [00:21:29] Speaker 01: February 20, 1979. [00:21:31] Speaker 01: Does it show that this is new and material evidence? [00:21:35] Speaker 00: It shows that that was the evidence that that was, it's new. [00:21:39] Speaker 00: Yes, that part of it, just the description of it shows that it's new, that the VA went and got it. [00:21:45] Speaker 00: In this case, it's definitely new when you look at it in the context of the case, because he identifies this hospitalization in his NOD. [00:21:52] Speaker 00: He doesn't attach anything. [00:21:54] Speaker 00: And so you'll see here on appendix 35, [00:21:57] Speaker 00: notice of disagreement received talks and it says indicating readmission and that's what NOD did and then February 20th is the report documenting VA going and getting that thing from the VA clinic. [00:22:10] Speaker 00: So then the question is how do we know to your point did they decide whether it was a material? [00:22:16] Speaker 00: That is [00:22:18] Speaker 00: the decision on page 36 that Judge Lurie pointed to. [00:22:21] Speaker 00: It's also, in this case, on page 35 under the June 12th description, because that's a confirmed rating decision, which is actually in the brief. [00:22:32] Speaker 00: It's appendix 30. [00:22:34] Speaker 00: And that actually does contain the magic language [00:22:38] Speaker 00: that this court in Hampton and Pickett doesn't say is necessary, but it actually contains it in this case. [00:22:43] Speaker 01: So it says this is the first notice. [00:22:45] Speaker 01: And it says specifically that it's not new and materialized. [00:22:47] Speaker 00: Yeah, that document says it's not new. [00:22:49] Speaker 01: Does that say for purposes of? [00:22:54] Speaker 01: Sufficient disability, showing sufficient disability? [00:22:57] Speaker 00: Yeah, yeah. [00:22:57] Speaker 00: So the hospital document or whatever that they've decided to report shows current condition and is not going to issue a service connection. [00:23:08] Speaker 00: That again goes back to the SCA service connection. [00:23:10] Speaker 00: SCA service connection. [00:23:12] Speaker 00: And again, the basis for the denial of service connection here was the failure to establish that the event, that there was an event or development of schizophrenia [00:23:21] Speaker 00: during or within one year after service. [00:23:23] Speaker 00: That's been the theme throughout. [00:23:25] Speaker 00: That changes in 2009, by the way. [00:23:28] Speaker 00: Or not in 2009, but eventually he gets benefits back to 2009 when he reopens. [00:23:33] Speaker 00: But that 2009 claim, which is also in the record, is premised on a completely different factual scenario. [00:23:40] Speaker 01: Can I ask you something else? [00:23:41] Speaker 01: Our law, like Bond and Barode, say that we're not going to just assume that the VA has met its regulatory duty [00:23:49] Speaker 01: to determine whether something's new in material evidence, right? [00:23:53] Speaker 01: And then the argument here, I think, is that because it wasn't clear to the veteran that that duty had been provided, it's if it was never done, right? [00:24:02] Speaker 01: Where does that law come from? [00:24:03] Speaker 00: So that's an interesting question. [00:24:08] Speaker 03: So because here... Questions from the bench are presumed to be... You're right, huh? [00:24:13] Speaker 00: You're right, Your Honor. [00:24:13] Speaker 00: Oh, wait. [00:24:14] Speaker 00: I'm not supposed to say that either. [00:24:16] Speaker 00: So it's kind of like that situation in the beginning of Monty Python when they're talking to the bushes. [00:24:21] Speaker 00: Anyway, the... I lost my train. [00:24:26] Speaker 00: I'll go back and deal with this in a couple different ways. [00:24:31] Speaker 00: Bond and Baroud, I think the problem particularly in Bond and in Baroud were when they went to see through the record whether the actual evidence that had been identified was ever even considered, they couldn't find it. [00:24:43] Speaker 00: And I actually pulled the Bond file and it, [00:24:46] Speaker 00: There's something weird about how that case started so that there actually wasn't a statement in the case in that case, but it doesn't refer to the evidence that was at issue this February 1998. [00:24:55] Speaker 00: I think it's clear that in those cases there just was no... It just didn't seem to be there. [00:25:00] Speaker 01: And it was that we're not going to assume that it was done. [00:25:03] Speaker 00: You don't even show us anywhere where you were even looked at. [00:25:08] Speaker 00: Here you have a bunch of things that are different. [00:25:10] Speaker 00: From this record you have [00:25:13] Speaker 00: Well, first of all, you have. [00:25:14] Speaker 01: My question was a little different. [00:25:15] Speaker 00: No, but I'm going to answer my question. [00:25:17] Speaker 00: Because what you have here is this document, which Mr. Williams contends he never received. [00:25:22] Speaker 00: But that's this document at page appendix 30, which is actually, it's like, I would submit, I mean, that if that kind of document was in the record at bond, you wouldn't have bond result the way it did. [00:25:37] Speaker 00: But in this appendix 30, this talks about the very evidence [00:25:41] Speaker 00: and then describes it as not satisfying a new material evidence standard. [00:25:45] Speaker 00: So the problem here is Mr. Williams contended and has contended that he never received this document. [00:25:52] Speaker 00: OK, fair. [00:25:55] Speaker 00: Nobody pushed that below. [00:25:56] Speaker 00: But what he does concede is that he received the statement of the case, where he received notice of the document. [00:26:04] Speaker 01: And the government's position is that the statement of the case shows [00:26:07] Speaker 01: that the agency considered whether it was new material evidence and provided the answer to that even. [00:26:13] Speaker 01: But you didn't argue, I don't think, that it was this other point that I'm asking about, which is trying to figure out the source of law. [00:26:23] Speaker 00: But I would submit, I would, well, let me just finish this because I thought this might be an answer based on this record, but maybe I need to hear the question again. [00:26:32] Speaker 00: What we do submit is the statement of the case answers the question here by itself. [00:26:37] Speaker 00: Don't need to resort back to this document of eight days earlier or whatever, seven days earlier. [00:26:44] Speaker 00: We would also submit that that document does answer the question, and the provision of the notice of that document should have put Mr. Williams. [00:26:51] Speaker 00: In other words, if the statement of the case had said nothing else, providing Mr. Williams a notice of that document, we would contend is sufficient. [00:27:00] Speaker 00: But the court never needs to reach that, because our main argument is the statement of the case, particularly given its purpose and function within the VA claims process, is designed to do exactly what. [00:27:11] Speaker 00: Mr. Williams argues should have been done. [00:27:13] Speaker 00: And it did do it in this case based upon the plain language of the document. [00:27:17] Speaker 00: Is there a... Yeah, I may need to hear it again. [00:27:23] Speaker 00: Sorry. [00:27:24] Speaker 01: I think I was asking hypothetically, assuming that the only thing that existed was the document at page 830, what is the [00:27:36] Speaker 01: What is the law that would say the decision on new and material evidence doesn't exist unless it's conveyed to the veteran? [00:27:48] Speaker 00: So I think that there is, I think standing here I might say there is no law [00:27:53] Speaker 00: to deal with a situation where the agency did what it was supposed to do but failed to give notice to the individual in a situation, well, let me state. [00:28:05] Speaker 01: Let me ask you this, if it was just some sort of regular decision that was supposed to be provided to the veteran, [00:28:14] Speaker 01: I assume that the appeal would stay open if the veteran never received the decision. [00:28:18] Speaker 00: That's the pending claim theory. [00:28:20] Speaker 00: Yeah, that's the pending claim theory jurisprudence, which this court supplied. [00:28:23] Speaker 00: And then, of course, our response is, unless there's an implicit denial in the record that came later, which is the other end of the pending claim theory. [00:28:32] Speaker 00: Because when this court first [00:28:34] Speaker 00: adopted the pending claim theory, fair enough. [00:28:37] Speaker 00: The secretary came back in different cases and said, yeah, but two years later, he made the same claim and he said no. [00:28:43] Speaker 00: So a reasonable person would know that that claim that maybe was pending from two years prior had been denied, even though he maybe failed to deny it two years earlier. [00:28:53] Speaker 00: That's the implicit denial. [00:28:55] Speaker 00: doctrine. [00:28:56] Speaker 00: So the two work together. [00:28:58] Speaker 00: So if hypothetically in this case, Judge Dole, the only document was that Appendix 30, it just didn't get to him? [00:29:04] Speaker 00: Yeah, you might have a pending claim theory question. [00:29:07] Speaker 00: The question would then be, what comes next? [00:29:08] Speaker 00: Is there anything that came after that that would have fairly put him on notice that he should have known that it was denied? [00:29:14] Speaker 00: Here, of course, you have a statement of the case issued eight days later that not only does it on its own, but then puts him on notice of the existence of this earlier decision. [00:29:22] Speaker 03: Thank you, counsel. [00:29:23] Speaker 04: We have your case. [00:29:49] Speaker 04: disorder and the secretary and the court below are prepared to offer post-hoc rationalizations based upon a statement of the case that simply does not say what the government is saying it says. [00:30:06] Speaker 04: There's no reference to an event [00:30:09] Speaker 04: There's no discussion about an assessment was made as required by the reg. [00:30:16] Speaker 04: There was no determination that the evidence received relates back to. [00:30:22] Speaker 04: What we have here is- Can I ask you a question? [00:30:25] Speaker 01: This question might not relate to the issues in front of us, but it's just something puzzling in the back of my mind. [00:30:31] Speaker 01: When I look at your record, the first evidence I see that ties the schizophrenia to this service is dated 2009. [00:30:40] Speaker 01: What good does it do to go back to 1978 or 79? [00:30:44] Speaker 04: Because the claim is pending then, Your Honor, under 3.156b. [00:30:49] Speaker 04: Until the requirements of 3.156b are met, that claim remains pending. [00:30:55] Speaker 04: And therefore, the evidence, if it's a pending claim, that it was presented in the record later to support the grant, supports that pending claim that is ongoing, which is why the government is so vigorously trying to defend this so that they don't have to pay this service-connected schizophrenic money back from 1978 until 2009. [00:31:22] Speaker 04: And when the government gets up here and says, well, this is really an effective date case, no, this is a case about regulatory interpretation and whether or not a statement of the case, this statement of the case, has to be reconciled. [00:31:38] Speaker 04: There's no obligation under the plain language of the regulation to reconcile anything. [00:31:44] Speaker 04: This is a binary analysis under bond. [00:31:48] Speaker 04: There either was or there wasn't [00:31:52] Speaker 04: The assessment made and a determination made and communicated that this evidence. [00:31:59] Speaker 03: Is that a factual question beyond us? [00:32:01] Speaker 04: No, Your Honor. [00:32:02] Speaker 04: That's the holding in bond. [00:32:05] Speaker 04: And this court and the lower court are bound by it. [00:32:09] Speaker 04: Thank you very much, Your Honor. [00:32:10] Speaker 03: Thank you. [00:32:11] Speaker 03: The case is submitted.