[00:00:00] Speaker 03:
Our next case is Brown versus McDonough number 23-1847

[00:01:11] Speaker 03:
Mr. Carpenter, you have reserved five minutes for rebuttal, is that correct?

[00:01:14] Speaker 03:
I have.

[00:01:15] Speaker 03:
Was this the second or third time I see you this week?

[00:01:18] Speaker 04:
Second time, but I saw you on remote rather than in person.

[00:01:25] Speaker 04:
I hope we're both better in person.

[00:01:28] Speaker 03:
You may proceed.

[00:01:31] Speaker 04:
Thank you.

[00:01:32] Speaker 04:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Thaddeus Brown.

[00:01:36] Speaker 04:
An issue in this case is whether or not the Veterans Court erred in relying upon a misinterpretation of the provisions of 38 CFR 3.156b.

[00:01:45] Speaker 04:
3.156b is a provision within the legacy appeals system that provided for a regulatory

[00:01:59] Speaker 04:
exception to finality that allows for the finding of a pending claim when new and material evidence has been received within two specified periods of time, which were the applicable time periods in this case.

[00:02:16] Speaker 03:
It seems to me, Mr. Carver, that you just recited the big heel you have to climb, and that is new material evidence.

[00:02:24] Speaker 03:
I don't see how this, the information that you're going to argue to us, the underlying information,

[00:02:29] Speaker 03:
I can't see how that would be new and material evidence.

[00:02:33] Speaker 04:
Well, Your Honor, it would be new and material evidence because in the original denial, it was denied.

[00:02:38] Speaker 04:
What happened when?

[00:02:40] Speaker 04:
In 1991.

[00:02:41] Speaker 03:
That's okay.

[00:02:43] Speaker 04:
But that is the entire regulatory function of 3.156C, when there is a denial of a benefit and the VA receives within these two specified periods of time, in this case within one year after the denial, new and material evidence.

[00:03:01] Speaker 04:
VA received new and material evidence in the form of a VA examination, which diagnosed Mr. Brown with post-traumatic stress disorder.

[00:03:11] Speaker 02:
I'm going to shift the focus for a minute from 1991 to, I guess, 1998.

[00:03:18] Speaker 02:
So let me just tell you how I'm understanding things, and you'll tell me where I've gone wrong.

[00:03:25] Speaker 02:
In 1998, the board considered this evidence, concluded that on the merits, it did not change the result as to PTSD.

[00:03:40] Speaker 02:
So later when there's a 2005 claim, which is ultimately, I guess, the claim that

[00:03:47] Speaker 02:
That's an issue here.

[00:03:48] Speaker 02:
It just took a long, long time to get up here.

[00:03:52] Speaker 02:
The Veterans Court said, well, there was a final determination in 1998 by the board that this evidence makes no difference.

[00:04:04] Speaker 02:
And therefore, there is no issue of new and material evidence left.

[00:04:09] Speaker 02:
We know it's not material.

[00:04:12] Speaker 04:
But Your Honor, that's... What's wrong with that?

[00:04:15] Speaker 02:
Have I misunderstood the Veterans Court decision?

[00:04:18] Speaker 02:
No, Your Honor.

[00:04:19] Speaker 04:
I believe that's a correct characterization.

[00:04:21] Speaker 02:
What's wrong with that?

[00:04:22] Speaker 04:
What's wrong with that is that's inconsistent with the language of 3.156b, as has been interpreted by this court in both Bond and Barad.

[00:04:32] Speaker 04:
And specifically in Barad, this court said that when there is not an assessment of the new and material evidence received, that that claim remains open until the

[00:04:47] Speaker 04:
VA determines whether or not the post-decision evidence received within the one-year period was new and material.

[00:04:56] Speaker 04:
What the Veterans Court did is to transpose that obligation to an obligation that the board could perform in the course of a consideration of a claim many years later.

[00:05:12] Speaker 02:
The operation of 3.15- The consideration of the same claim with an expanded evidentiary basis that included the March or May 1992 exam, right?

[00:05:23] Speaker 04:
Yes, Your Honor, it did.

[00:05:24] Speaker 04:
But as this Court described, the role of 3.156C for VA adjudicators is that it is an affirmative duty, a self-imposed obligation by the Secretary, that when they receive that new and material evidence,

[00:05:40] Speaker 04:
They are required to make an assessment as to whether or not that evidence is A, new and material, and B, relates back to the original claim.

[00:05:52] Speaker 04:
Both of those preconditions apply here, and they cannot then be applied in the future when the VA examines it a second, third, or in this case potentially a fourth time.

[00:06:07] Speaker 04:
The operation of 3.156C is, if you will, time sensitive and decision sensitive.

[00:06:15] Speaker 04:
And the decision that was to be reconsidered, or excuse me, was to be examined as to whether or not the new and material evidence of a diagnosis of PTSD was that original denial in the 1990s.

[00:06:30] Speaker 04:
And that simply was not done here.

[00:06:34] Speaker 01:
In October 2009, the board did do exactly what you're asking.

[00:06:38] Speaker 01:
Isn't that right?

[00:06:39] Speaker 04:
The board did so.

[00:06:40] Speaker 04:
Yes, you are.

[00:06:41] Speaker 04:
But the board is not who is charged with doing that.

[00:06:44] Speaker 04:
The board is an appellate body.

[00:06:46] Speaker 01:
So if you were right on the interpretation and we sent it back, what exactly would the ultimate relief be?

[00:06:57] Speaker 01:
That the secretary, the regional office,

[00:07:00] Speaker 01:
has to decide, is it new and material?

[00:07:03] Speaker 01:
And is there a valid claim for PTSD?

[00:07:06] Speaker 01:
Is that the right thing?

[00:07:08] Speaker 04:
Well, actually, all they have to do is determine whether or not the evidence received was new and material and related back to the original claim.

[00:07:17] Speaker 04:
In that case, the original 1991 claim

[00:07:20] Speaker 04:
would be pending as a matter of law.

[00:07:23] Speaker 04:
That is the regulatory function of 3.156b.

[00:07:26] Speaker 01:
But even though you can see the board has subsequently done that, you would ultimately see this case going in a direction where someone would make the regional office do that same new immaterial analysis.

[00:07:41] Speaker 04:
Which is what the board should have done in each of the times in which

[00:07:45] Speaker 04:
it was taking up the question in the number of board decisions that addressed the question of what was his original claim.

[00:07:56] Speaker 04:
And I would also point out to the court that the evidence that was received was not only a diagnosis of PTSD, but a VA examination, which was conducted in

[00:08:14] Speaker 04:
March of 1992, that examination diagnosed probable bipolar disorder with exacerbation under stress and PTSD.

[00:08:26] Speaker 04:
So now we have injected into this original claim a

[00:08:32] Speaker 04:
disability other than PTSD, which is what was granted here.

[00:08:37] Speaker 04:
And the obligation of the VA is to fully and sympathetically develop the record to determine whether or not the veteran is entitled to the benefits in 1990, not entitled to the benefits in 2022 when they finally made, or 2023, when they made the decision in this case.

[00:08:57] Speaker 01:
I have a question about our jurisdiction.

[00:08:59] Speaker 01:
As I understand the Secretary's argument to us,

[00:09:02] Speaker 01:
this all comes down to whether the PTSD claim was in front of the Court of Appeals for Veterans claims and that deciding what claims are in front of that court is a factual analysis

[00:09:18] Speaker 01:
for them to do and we can't review that.

[00:09:22] Speaker 01:
It seemed like you were not contesting that, which would lead to the conclusion, I think, that we don't have jurisdiction.

[00:09:28] Speaker 01:
So you must be contesting it.

[00:09:30] Speaker 01:
Help me out with what your position is.

[00:09:33] Speaker 04:
Well, my position is, is because of the nature of the Secretary's own regulation, that he created a regulation that suspends adjudication until specific regulatory requirements are met.

[00:09:49] Speaker 04:
And therefore, the claim, which was for an

[00:09:54] Speaker 04:
acquired psychiatric disorder or a mental disorder that was a resulting disability from his period of service, which this board, after decades, finally agreed that there was a relationship between his mental disorder

[00:10:11] Speaker 04:
disability and his military service.

[00:10:15] Speaker 04:
That examination, that consideration, should have been made in the first instance by the VA in the early 1980s.

[00:10:21] Speaker 01:
But what I'm hearing there is the PTSD claim, in your view, was before the board in the appeal that we're now part of.

[00:10:32] Speaker 01:
Therefore, it was in front of the Court of Appeals for Veterans claims.

[00:10:35] Speaker 01:
Yes.

[00:10:35] Speaker 01:
The argument from the secretary, as I understand it, is

[00:10:39] Speaker 01:
They don't think it was before the court appeals for evidence claims, but whether it was or it wasn't, that's a factual question for them to determine, over which we have no jurisdiction to review.

[00:10:48] Speaker 04:
Well, I respectfully disagree with that notion, Your Honor, because a claim, as this court decided in Saunders,

[00:10:55] Speaker 04:
is based upon a resulting disability.

[00:10:58] Speaker 04:
Mr. Brown's resulting disability is a psychiatric disability.

[00:11:04] Speaker 04:
You cannot, as the VA has attempted to do here, differentiate between claims for a disability from a psychiatric disorder and say they are in different classes based upon their diagnoses.

[00:11:19] Speaker 04:
There's only one claim here, and that claim is for service connection for a mental disorder.

[00:11:25] Speaker 04:
I'll reserve the balance of my time unless there's further questions from the panel.

[00:11:28] Speaker 04:
Okay, thank you.

[00:11:29] Speaker 04:
Thank you, Aaron.

[00:11:35] Speaker 03:
Councillor Welch.

[00:11:39] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:11:42] Speaker 00:
I wanted to start with what Mr. Carpenter just finished talking about, the difference between psychiatric and whether or not this was before the Board.

[00:11:50] Speaker 00:
What was before the Board because

[00:11:52] Speaker 00:
he did not appeal, Mr. Brown did not appeal in 2009, the PTSD claim was psychiatric claims other than PTSD.

[00:11:59] Speaker 00:
It says very clearly that the Veterans Court was looking only at claims beyond PTSD.

[00:12:06] Speaker 00:
So it wasn't a full scope of all these mental conditions.

[00:12:11] Speaker 00:
It was specifically excluding PTSD because it wasn't appealed.

[00:12:15] Speaker 00:
As Judge Stark pointed out, we believe there is no jurisdiction over these claims because of the fact that

[00:12:21] Speaker 00:
He didn't seek review of this October 2009 denial of the request to reopen the claim.

[00:12:26] Speaker 02:
And just to close the loop, your view is that under our decision in Tyrus, he was required to appeal the PTSD part in 2009?

[00:12:42] Speaker 00:
Yes, correct, within 120 days.

[00:12:44] Speaker 00:
And he did not.

[00:12:45] Speaker 00:
So therefore.

[00:12:46] Speaker 03:
On what date?

[00:12:47] Speaker 00:
He would have had, October 2009, the decision.

[00:12:52] Speaker 00:
He must have appealed that to the Veterans Court within 120 days on PTSD, and he did not.

[00:12:56] Speaker 00:
He appealed it on these claims other than PTSD, these psychiatric claims.

[00:13:00] Speaker 03:
In connection with that decision, the Board had found that Brown failed to provide new and material evidence, right?

[00:13:08] Speaker 00:
Yes, Your Honor, correct.

[00:13:09] Speaker 03:
But they rematted to on this other on the psychiatric disability.

[00:13:14] Speaker 00:
Yes.

[00:13:15] Speaker 03:
But not on the PTSD.

[00:13:16] Speaker 00:
Yes, Your Honor, correct.

[00:13:17] Speaker 03:
PTSD portion of that finding, it was not appealed.

[00:13:24] Speaker 00:
No, it was not appealed because they looked at multiple times.

[00:13:28] Speaker 00:
There was not, there's not an issue.

[00:13:29] Speaker 00:
And your first question was about the hill they had to climb in relation to this new material evidence standard.

[00:13:35] Speaker 00:
The new and material evidence was considered all the way back in the 1998 decision, the September 19th.

[00:13:41] Speaker 02:
Can you just stay for a minute with the 2009 decision?

[00:13:45] Speaker 00:
Yes.

[00:13:45] Speaker 02:
Where does it say that it was not finding the March, is it March or May, 1992?

[00:13:55] Speaker 00:
The exam in 1992 was in March.

[00:13:59] Speaker 02:
The March, where does the board say in its 2009 decision that the March 1992 examination evidence is not new material?

[00:14:14] Speaker 00:
It doesn't say that.

[00:14:15] Speaker 00:
It says that service connection for PTSD was denied in May 2001, and that's at appendix 175.

[00:14:20] Speaker 00:
And that has to do with the March 1992 examination.

[00:14:29] Speaker 01:
What about 167?

[00:14:30] Speaker 01:
Isn't that an order in reference to a lack of new material evidence for the PTSD claim?

[00:14:42] Speaker 00:
Yes, it is.

[00:14:43] Speaker 02:
And new and material as of when?

[00:14:47] Speaker 02:
I took that to mean new and material after 2001, not back to 1992.

[00:14:56] Speaker 00:
In 2001, it's restating the fact that in 2001, in that second request, the RO again denied service connection on the merits in relation to the PTSD claim, stating that it had been

[00:15:11] Speaker 00:
reopened and denied previously, so it was final.

[00:15:14] Speaker 00:
And that was in relation to the 1998 denial in relation to new material evidence.

[00:15:19] Speaker 02:
I guess, I mean, here is my confusion.

[00:15:21] Speaker 02:
In your brief, you talk about the 1998 decision.

[00:15:24] Speaker 02:
We haven't quite got there yet.

[00:15:26] Speaker 02:
Yes.

[00:15:27] Speaker 02:
But you also talk about the 2009.

[00:15:28] Speaker 02:
And I'm having some, and maybe you even, I think, place emphasis on the 2009.

[00:15:34] Speaker 02:
And I'm having some trouble seeing that the board in 2009 said that the March 1992 examination material was not new in material.

[00:15:49] Speaker 02:
Comparing it to the 1991 RO decision.

[00:15:53] Speaker 00:
Right.

[00:15:54] Speaker 00:
So in appendix 163, it says also record was a report of a 1992 PA examination.

[00:16:03] Speaker 00:
And that is in the October 2009 decision.

[00:16:06] Speaker 00:
And this is under the subheading, new and material evidence.

[00:16:12] Speaker 00:
So that was when they were discussing evidence for PTSD in relation to new and material evidence.

[00:16:20] Speaker 00:
And they do mention the 1992 examination again.

[00:16:24] Speaker 01:
What page was that, sorry?

[00:16:25] Speaker 00:
Appendix 163.

[00:16:31] Speaker 02:
Is there some deficiency in just focusing on the 1998 decision when the board, I think, clearly considered that evidence and concluded that it did not support a PTSD diagnosis, a service-connected PTSD diagnosis?

[00:16:51] Speaker 02:
Is that somehow different from a determination of whether the March 1992 exam evidence was new and material?

[00:17:03] Speaker 02:
Could it be not result-changing but still new and material compared to what was in front of the RO in 1991?

[00:17:12] Speaker 00:
Well, in 1991 the exam wouldn't have been before.

[00:17:17] Speaker 00:
The more because it happened or the are because it happened in 1992 but in 98 they do specifically they go through all the items within that March 1992 exam and they discuss very specifically.

[00:17:29] Speaker 00:
why it is that he does not have this.

[00:17:31] Speaker 02:
Let me see if I can make the question that is in my mind clear.

[00:17:36] Speaker 02:
So I think it is clear, for purposes of this question, assume I agree that it is clear that in the 1998 decision, the board says, I'm considering all the evidence, including the March 1992.

[00:17:51] Speaker 02:
And we think that service-connected PTSD is not supported.

[00:17:58] Speaker 02:
Maybe that's actually not the same conclusion as a conclusion that comparing the 1991 material that was in front of the RO and the March 1992 examination, that the March 1992 examination is not new material compared to the RO 1991 material.

[00:18:25] Speaker 02:
And that, I think, is the question that Mr. Carpenter once considered and said has never been considered.

[00:18:35] Speaker 00:
I don't think the facts bear that out.

[00:18:37] Speaker 00:
Appendix pages... Which part of it?

[00:18:40] Speaker 00:
63 to 65.

[00:18:41] Speaker 00:
I don't think it bears out that they did not consider this as new and material evidence.

[00:18:46] Speaker 00:
They discussed, if we go to

[00:18:56] Speaker 00:
So first of all, at appendix page 60, in the first paragraph of the talk, they discuss the article of our decision from 1991, and they discuss the standard at the bottom of that sentence 3.156 for new material evidence.

[00:19:10] Speaker 00:
And then if you flip a few pages at page 63, that's where they discuss in depth this VA exam, this March 1992 VA exam.

[00:19:22] Speaker 00:
It shows very specifically that they were looking at this exam in relation to the 1991 claim as new and material evidence.

[00:19:32] Speaker 00:
OK.

[00:19:35] Speaker 00:
If there are no further questions.

[00:19:37] Speaker 03:
Thank you.

[00:19:37] Speaker 00:
The court should dismiss this appeal for lack of jurisdiction.

[00:19:39] Speaker 00:
Thank you, Your Honors.

[00:19:40] Speaker 03:
Thank you very much.

[00:19:42] Speaker 03:
Mr. Carpenter, you have five minutes.

[00:19:45] Speaker 04:
Thank you, Your Honor.

[00:19:49] Speaker 04:
The government's attempt to rely upon Tyreuse is not valid in this case.

[00:19:59] Speaker 04:
Tyreuse deals with

[00:20:05] Speaker 04:
alternative theories of entitlement and the right to bring those different theories in different claims.

[00:20:13] Speaker 02:
I hear- Isn't it just a, I don't know, almost a commonplace little PTSD claim is a different claim from a other psychiatric disorder claim?

[00:20:26] Speaker 04:
It would be- It is different in the extent that there are specific requirements for corroboration

[00:20:33] Speaker 04:
of a credible supporting evidence, I'm sorry, of an event in service.

[00:20:40] Speaker 04:
But the claim itself, regardless of the requirements to grant that claim, are only for the award of a psychiatric disability.

[00:20:53] Speaker 04:
If you examine the language in 3.304, it specifically references the fact that there must be a diagnosis under DSM.

[00:21:03] Speaker 04:
And therefore, we look at the general rating formula for evaluating mental disorders.

[00:21:12] Speaker 04:
And regardless of your diagnosis, PTSD or depression or bipolar disorders, they are all rated by the VA under the same rating formula.

[00:21:25] Speaker 04:
So the resulting disability under 1110 is the acquired psychiatric disorder.

[00:21:32] Speaker 04:
the mental disorder that is disabling.

[00:21:36] Speaker 02:
So just for purposes of the jurisdiction, the 2009 decision of the board, that's the one that starts at, what, 134?

[00:21:47] Speaker 02:
No, 133, is that right?

[00:21:50] Speaker 02:
Yes.

[00:21:51] Speaker 02:
And I don't, when the board sends out a decision like that, does it include a variety of instructions about taking appeals?

[00:22:07] Speaker 02:
And that's not attached to it, right?

[00:22:10] Speaker 02:
Do you happen to know whether in that set of pages that say, dear veteran,

[00:22:17] Speaker 02:
You've won on this.

[00:22:18] Speaker 02:
You've lost on this.

[00:22:19] Speaker 02:
You have to appeal this, whether that said the PTSD separate heading portion of this October 2009 decision.

[00:22:29] Speaker 04:
It would have only referred to the decision made by the board generically, and that you have the right to appeal any of the decisions.

[00:22:38] Speaker 04:
And as the court can see, there were multiple issues that were addressed.

[00:22:43] Speaker 04:
but it does not refer to any of those issues individually.

[00:22:48] Speaker 04:
But in this case, Your Honor, we're dealing with a question of regulatory interpretation, which has already been made by this Court in Bond and Barad about the operation of 3.156C.

[00:23:00] Speaker 04:
And the government's contention that Mr. Brown did not appeal any of these later decisions begs the regulatory question

[00:23:13] Speaker 04:
that is presented by the Secretary's own regulation.

[00:23:17] Speaker 04:
You can't appeal a non-final or pending claim.

[00:23:22] Speaker 04:
There's nothing to appeal.

[00:23:23] Speaker 04:
You can only appeal a final decision.

[00:23:27] Speaker 04:
If this claim was pending because the requirements of 3.156b were met in the mid-1990s, then that means

[00:23:37] Speaker 04:
That claim, that original claim, remains pending.

[00:23:41] Speaker 04:
There is no proceeding to reopen.

[00:23:43] Speaker 04:
You reopen under 5108 or 3.156A.

[00:23:46] Speaker 03:
Are these questions a fact?

[00:23:49] Speaker 04:
No, Your Honor.

[00:23:49] Speaker 04:
Those are questions of law.

[00:23:50] Speaker 03:
I know it's interpreting the regulation, but aren't you applying facts in that?

[00:23:54] Speaker 04:
No, Your Honor.

[00:23:55] Speaker 04:
This court, in both Bond and Verad,

[00:24:02] Speaker 04:
interpretations of 3.156b and explained the Secretary's decision to invite this kind of scrutiny, which is if the VA receives what could be considered to be new and material evidence within two specific time periods, then the Secretary imposed upon himself the obligation to pause

[00:24:30] Speaker 04:
to go back and make what is referred to in the decisions an assessment to determine those two requirements.

[00:24:38] Speaker 04:
Was the evidence new and material and did it relate back to the original claim?

[00:24:43] Speaker 04:
Those two criteria are met in this case because there was no diagnosis of PTSD

[00:24:50] Speaker 04:
and then there was a diagnosis of PTSD, as well as another psychiatric disorder.

[00:24:56] Speaker 04:
So that claim is pending.

[00:24:59] Speaker 04:
Everything that happened after that is ineffectual as a matter of law, because under the title of 3.156b, it is a determination that a claim is pending.

[00:25:18] Speaker 04:
And the original claim for Mr. Brown was pending in this case, and we urge this court to make that determination and send this back to the Veterans Court.

[00:25:27] Speaker 03:
Thank you, Mr. Farber.

[00:25:27] Speaker 04:
Thank you very much.