[00:00:00] Speaker 02:
Our third case this morning is number 23, 2214, Deal v. Collins.

[00:00:06] Speaker 02:
Mr. DeHawke.

[00:00:08] Speaker 03:
Thank you, Your Honor.

[00:00:08] Speaker 03:
May it please the Court, on behalf of Mrs. Deal, I want to thank the Court for the opportunity to present her appeal.

[00:00:14] Speaker 03:
Before diving into our argument, I want to emphasize that Mrs. Deal is not asking

[00:00:20] Speaker 03:
for an effective date of 1991 for her claim.

[00:00:23] Speaker 03:
Instead, she's asking this court to enforce its precedent on 3.156b to the undisputed facts of this case and find that the 1991 claim is the date of application for determining the effective date under 5110.

[00:00:39] Speaker 03:
And that would then require the board to make the initial fact finding, whether the facts find that she had the disability, et cetera, prior to the current effective date of 1995.

[00:00:52] Speaker 03:
Mrs. Deal asks his court to again review 3.156b.

[00:00:56] Speaker 03:
Whereas the prior precedent has dealt with VA's obligations when this regulation has been triggered, resolution of this appeal rests on the effect of VA's failure to comply with 3.156b.

[00:01:08] Speaker 03:
All right.

[00:01:10] Speaker 01:
Counselor, I noticed on the second page in your brief

[00:01:14] Speaker 01:
on the statement of issues, you say that the Veterans Court misapplied 38 CFR 315.

[00:01:19] Speaker 01:
Is that what this case is about?

[00:01:30] Speaker 03:
So the issue, yes, Your Honor, they misapplied 3.156B.

[00:01:34] Speaker 03:
Is the misapplication of law to facts?

[00:01:37] Speaker 03:
No, not to, well, to undisputed facts, yes, your honor.

[00:01:41] Speaker 03:
And as I pointed out in our reply brief, the law to undisputed facts is a question of law over which this court has jurisdiction.

[00:01:49] Speaker 03:
We know that VA issued a decision in July 1992.

[00:01:52] Speaker 03:
There's no dispute to that.

[00:01:54] Speaker 03:
We also know that in May of 1993, within a year of that decision,

[00:01:58] Speaker 03:
VA received treatment records on the issue of that claim.

[00:02:03] Speaker 03:
And we also know that in 1996, VA issued a subsequent decision.

[00:02:09] Speaker 03:
And at appendix 115, the board made a favorable finding that that decision did not consider those records.

[00:02:17] Speaker 03:
And it was not until the claim was granted in 2016, later appealed through the board and to the court

[00:02:23] Speaker 03:
that the 1993 records were addressed as required under 3156B, as interpreted by Bond and Barat.

[00:02:32] Speaker 03:
And so the undisputed facts established that these records were never addressed prior to the claim being granted.

[00:02:39] Speaker 03:
And under the binding precedent, again, Bond and Barat, that that 1991 claim remains pending until that responsive determination is made.

[00:02:51] Speaker 02:
Well, I don't read the prior art as saying that the claim remains pending.

[00:02:56] Speaker 02:
I read the prior cases as suggesting that if there hasn't been the required determination that there has to be a remand to instruct the board or Veterans Court to make the determination.

[00:03:15] Speaker 03:
No, Your Honor.

[00:03:16] Speaker 03:
I don't read the case law to say that, as we cited in our briefs.

[00:03:21] Speaker 03:
Well, they did remand in that case.

[00:03:24] Speaker 03:
They did, Your Honor, but keep in mind that that remand was necessary because that determination had not been made.

[00:03:32] Speaker 03:
And until the determination is made, Barad was very clear, and that has been reaffirmed in Pickett, in Hampton, and again in Williams, as the secretary filed the notice of Williams, which was issued just a few days ago, that each of those subsequent cases has reaffirmed over and over that the claim remains pending until that determination is made.

[00:03:57] Speaker 03:
And here, what the Veterans Court did is affirm the board's determination that if the evidence is not new and material, then we can go back and retroactively finalize a claim.

[00:04:10] Speaker 03:
But it's either pending or it's not.

[00:04:12] Speaker 03:
If the evidence has not been responded to, if the veteran does not receive that response of determination as required by the regulation, as interpreted in broad, then the claim remains pending.

[00:04:24] Speaker 03:
And this is what happened here, again, under the undisputed facts.

[00:04:28] Speaker 00:
I just need a little help on this.

[00:04:29] Speaker 00:
If you're right about that, that the plane remained pending till 2021.

[00:04:36] Speaker 00:
uh... well at least until twenty sixteen your honor when the claim was made was eventually granted but uh... i think it's indisputable now but help me if i'm wrong that by twenty twenty one at the latest the board did go through and tell you what it thought of in nineteen ninety three evidence that maybe it's new but it's not material right correct so what more could you get out of this appeal even if you won the appeal

[00:05:05] Speaker 03:
So the effect of delaying that determination, delaying the notice of that response of determination, is that the 1991 claim remained pending.

[00:05:19] Speaker 03:
If the VA neglects to comply with the regulation and doesn't provide that determination, then the 1991 claim is still alive.

[00:05:31] Speaker 03:
When the Secretary granted the claim in 2016, it was addressing the 1991 claim, not, as the board found, the 1995 claim, because it was still pending.

[00:05:43] Speaker 03:
And so in these later decisions.

[00:05:45] Speaker 02:
That's a new issue for us, right?

[00:05:47] Speaker 02:
The cases you're relying on don't decide that.

[00:05:54] Speaker 03:
I think Barad addresses that to the extent that it recognizes that the claim remains pending.

[00:06:02] Speaker 03:
No cases to date have actually addressed this specific question of, if it remains pending and the VA neglects to comply with this regulation,

[00:06:12] Speaker 03:
until after it grants the claim, does that first claim or that prior claim remain the date of claim for 5110 purposes?

[00:06:23] Speaker 03:
That's the new novel issue in this case, which is the logical next step in all of these, the whole line of cases through Pickett, Hampton, and now Williams.

[00:06:34] Speaker 03:
And what Pickett and Hampton and Williams said was the VA did do that at an earlier time, just implicitly, or in Williams at least, the most recent iteration, is that it did it in a statement of the case.

[00:06:50] Speaker 03:
And that's permissible because, and then it went through the regulatory requirements for that.

[00:06:56] Speaker 03:
But I would just like to really highlight what Barad said.

[00:07:00] Speaker 03:
As we make clear in bond, and I'm looking on page 1406 of that decision, as we made clear in bond that VA's obligations under 3156B are not optional.

[00:07:13] Speaker 03:
And then it goes on to say, in bond we unambiguously rejected the pre-presumption when there's no indication that VA has made the determination under 3156B.

[00:07:23] Speaker 03:
And finally,

[00:07:25] Speaker 03:
it reaffirms that VA must provide, going to 1407 now, under 3156B, that VA must provide a determination that is directly responsive to the new submission and that, until it does so, the claim at issue remains open.

[00:07:44] Speaker 03:
And so because the findings here, the undisputed facts, show that the VA never made that determination in 1996, which is the only other possible decision that could have,

[00:07:55] Speaker 03:
then the claim under Barad remained open until it was granted in 2016.

[00:08:00] Speaker 03:
And again, going back, Pickett, Williams, Hampton, all reaffirm when they describe the holding in Barad, use those words, that the claim remains open.

[00:08:12] Speaker 03:
The claim remains pending.

[00:08:14] Speaker 03:
And that's what Mrs. Deal is asking this court to recognize and settle in a presidential decision, that what does it mean to remain open?

[00:08:25] Speaker 03:
And we think, of course, that it means that that 1991 claim was the one that was before the VA when it granted the claim in 2016 as opposed to the 1995 claim.

[00:08:48] Speaker 03:
And then just to emphasize again, the 2016 decision was appealed to the board, challenging the effective date from the beginning, asking for the 1991 date as the application before the VA for 5110 effective date purposes.

[00:09:04] Speaker 00:
Let me ask you, I think this is just another way of asking the same question I asked you before, but I want to make sure I understand your answer.

[00:09:11] Speaker 00:
Page 20 of the red brief.

[00:09:13] Speaker 00:
What the government argues is that we've already received the only remedy we could possibly be entitled to, an explicit decision from the board that the evidence received by VA within a year of the 1992 rating decision was not new and material.

[00:09:27] Speaker 00:
Having found that it was not new and material, there's no basis for the VA to treat that evidence as part of her 1991 claim.

[00:09:35] Speaker 00:
What's wrong with that?

[00:09:37] Speaker 03:
So, Your Honor, what's wrong with that contention is, and we highlighted it in our reply brief, that is the remedy when the VA hasn't done it yet and it's before the court.

[00:09:50] Speaker 03:
The issue here is, what is the consequence of failing to do that until after the claim has been granted?

[00:09:59] Speaker 03:
And again, under Barad, and the clear holding, the claim remains open.

[00:10:05] Speaker 03:
And so an open claim,

[00:10:07] Speaker 03:
is one that hasn't been finally decided, once they grant the claim, the effective date is based on the date of application that was open, which in this case is 1991.

[00:10:18] Speaker 02:
So in 2015, the board had made the lack of materiality, the termination with respect to the 1991 claim and the new and material evidence that wouldn't remain pending under those circumstances, right?

[00:10:36] Speaker 03:
It would not, that would satisfy 3156B, your honor, and then under these facts.

[00:10:43] Speaker 00:
Wait, what's the answer?

[00:10:45] Speaker 03:
Well, under these facts, that claim was appealed.

[00:10:48] Speaker 03:
I gave you a hypothetical.

[00:10:50] Speaker 03:
Once the determination is made, Your Honor, that satisfies the regulation.

[00:10:54] Speaker 02:
So there would be no way to rely on that as the earlier effective date once the determination had been made.

[00:11:02] Speaker 02:
Right.

[00:11:03] Speaker 03:
And that's Pickett, that's Hampton, that's Williams.

[00:11:05] Speaker 03:
That's when it happens prior to the granting of the claim.

[00:11:09] Speaker 03:
On a decision, by the way, that was never appealed.

[00:11:13] Speaker 03:
This one, the Mrs. Deal did appeal the decision.

[00:11:18] Speaker 03:
And so under your question, Your Honor, if the VA had made that determination in 2015 and Mrs. Deal appealed that decision, then that prior open claim would still be alive because it had been put in appellate status.

[00:11:36] Speaker 03:
All that this is doing, Your Honor, is establishing when was the application received that the VA is looking at.

[00:11:44] Speaker 03:
And under Barad, when VA fails to satisfy, fails to comply with 3156B, the earlier claim remains open until they do that.

[00:11:55] Speaker 03:
Here, that never happened until after the claim was granted.

[00:11:58] Speaker 03:
And for that reason, the 1991 claim is

[00:12:02] Speaker 03:
is the application for effective date purposes.

[00:12:07] Speaker 02:
The problem that I see is that, if I'm correct, that in the 2016 determination, there was no argument that the claim remained open and should be a date back, correct?

[00:12:21] Speaker 03:
At that time, Your Honor, there was no opportunity to present that.

[00:12:27] Speaker 02:
Let's just answer the question.

[00:12:30] Speaker 02:
In 2016,

[00:12:31] Speaker 02:
There was no argument that the 1991 claim should be considered as part of that determination or that that entitled her to an earlier effective date, correct?

[00:12:41] Speaker 03:
That's correct, Your Honor.

[00:12:43] Speaker 02:
So why isn't it too late to raise the issue that you're raising now?

[00:12:50] Speaker 02:
Maybe if in 2016 there had been an argument that the claim remained pending,

[00:12:55] Speaker 02:
and that the 1991 should be the earlier effective date.

[00:13:00] Speaker 02:
So there'd be something to this.

[00:13:03] Speaker 02:
But why isn't it too late to raise that issue now when it could have been raised in 2016?

[00:13:08] Speaker 03:
A couple reasons, Your Honor.

[00:13:09] Speaker 03:
Number one, when the board was reviewing the claim in 2016, they were looking at whether the psychiatric condition was entitled to compensation, whether it was service-connected.

[00:13:20] Speaker 03:
The downstream issue of date of claim effective date was not before the board.

[00:13:25] Speaker 03:
And this court's precedent firmly establishes that a second notice of disagreement is required before that issue.

[00:13:32] Speaker 03:
There was no initial determination by the VA which application was being considered.

[00:13:39] Speaker 03:
It was not until the RO implemented the board's grant, assigned an effective date, and told her that, well, initially it was a 2001 claim.

[00:13:48] Speaker 02:
So the simple question, why wasn't she obligated to raise this argument that you're making?

[00:13:54] Speaker 02:
in 2016 if she wanted to raise it.

[00:13:57] Speaker 02:
I mean, you know, there's got to be some requirement on veterans making claims to raise issues in a timely way.

[00:14:07] Speaker 02:
Why isn't it untimely to do this now when it could have been raised in 2016?

[00:14:12] Speaker 03:
Because the VA has the obligation to correctly apply the law, Your Honor.

[00:14:16] Speaker 03:
38 CFR 3.103A obligates the VA to apply the law, not Mrs. Deal.

[00:14:23] Speaker 02:
Mrs. Deal's only obligation at the initial... Sort of suggesting there's no obligation to raise issues.

[00:14:28] Speaker 02:
There is no obligation.

[00:14:29] Speaker 03:
Well, but she did, Your Honor.

[00:14:30] Speaker 03:
She raised it in her notice of disagreement.

[00:14:32] Speaker 03:
As soon as the VA made a... Not in the 2016 proceedings.

[00:14:36] Speaker 03:
She did, Your Honor.

[00:14:37] Speaker 03:
She appealed that 2016 decision to the board for a de novo review.

[00:14:42] Speaker 03:
That's what 7105 guarantees her per Congress.

[00:14:46] Speaker 03:
The VA makes mistakes all the time.

[00:14:48] Speaker 03:
If the claimant was required to tell the VA at the outset which claim was before them, then

[00:14:57] Speaker 03:
In my experience, and in many other cases, the VA routinely messes up effective dates.

[00:15:03] Speaker 03:
The claimant is entitled by law because it's the VA's obligation to apply the correct law to assume that the VA is going to do that.

[00:15:13] Speaker 03:
When they make a mistake, there's an entire appellate process which she took advantage of to make that mistake corrected.

[00:15:21] Speaker 03:
Yes, they need to raise.

[00:15:23] Speaker 03:
Yes, they claim it needs to raise the issue.

[00:15:25] Speaker 03:
But they have, under 7105, a mechanism for doing that, which she did.

[00:15:30] Speaker 03:
To the board, she argued the 1991 claim was the date of claim before the VA when they granted the claim.

[00:15:37] Speaker 03:
That continued the Veterans Court, and now here.

[00:15:40] Speaker 03:
I am through my rebuttal time.

[00:15:41] Speaker 03:
But if there are no other questions.

[00:15:43] Speaker 02:
We'll give you a few minutes for rebuttal.

[00:15:45] Speaker 02:
Thank you, Your Honor.

[00:15:47] Speaker 02:
Mr. Kerlin.

[00:16:02] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:16:05] Speaker 02:
So take my hypothetical about 2015, OK?

[00:16:08] Speaker 02:
Yes, Your Honor.

[00:16:10] Speaker 02:
And she raises as part of the argument that resulted in the 2016 decision.

[00:16:18] Speaker 02:
She argues, I should get an early effective date because I really made the application in 1991, and that application is still pending.

[00:16:27] Speaker 02:
what's the outcome if she had raised it in part of the 2016 proceeding?

[00:16:33] Speaker 02:
Would she get the earlier effective date in 1991?

[00:16:38] Speaker 04:
I think that it would have depended on how VA would have adjudicated that claim at the time.

[00:16:45] Speaker 04:
I think the answer is no based on the facts of this case as they were ultimately adjudicated because VA ultimately looked at that issue and determined that the evidence that she submitted was not new and material.

[00:16:56] Speaker 04:
And presumably that's the same determination they would have made had she raised that claim in 2016.

[00:17:02] Speaker 04:
We do think she could have come in in 2016 and said, not only should I get service connection, but my effective date for service connection for this disorder should be

[00:17:13] Speaker 04:
1991, and VA would have adjudicated that.

[00:17:17] Speaker 04:
It is also fairly common that VA adjudicates an effective date, I'm sorry, a claim, assigns an effective date, and then that effective date is further appealed.

[00:17:28] Speaker 04:
I don't think it would have precluded her from, that type of practice would have precluded Mrs. Deal from coming in and making that claim.

[00:17:35] Speaker 04:
But I don't think the court has to reach that issue to decide this case in our favor.

[00:17:39] Speaker 04:
And that is because despite appellants' arguments otherwise, it is really key to this case that they concede that they do not challenge, and this is among other places on page four of their reply brief, she says very specifically, Ms.

[00:17:53] Speaker 04:
Deals says very specifically, that she does not challenge the materiality

[00:17:58] Speaker 04:
of the 1993 evidence.

[00:18:00] Speaker 04:
So that issue is out.

[00:18:03] Speaker 04:
And the fact that that issue is out is key because the touch tone of the whole regulation and the regulatory scheme here, and in particular I'm talking about 38 CFR 3.156 A and B, the whole regulation, the whole touch tone of this regulation is an exception to finality based on new and material evidence.

[00:18:26] Speaker 04:
The exception does not apply as a matter of the statute, as a matter of law, unless you have new and material evidence.

[00:18:34] Speaker 04:
Here, VA determined the evidence was new, but that it was not material.

[00:18:39] Speaker 04:
And so that is really key because to take the position that appellant has taken and is taking that whether or not the evidence is new and material is irrelevant because until VA makes a particular determination about that evidence, the claim remains open.

[00:19:00] Speaker 04:
is totally divorced from the regulatory scheme.

[00:19:02] Speaker 04:
It's a step too far.

[00:19:05] Speaker 04:
If you do that, you'd end up with essentially a new and material evidence exception to finality that doesn't actually require new and material evidence, and that just can't stand.

[00:19:19] Speaker 04:
It's also at odds with how the regulatory scheme itself works, and I hope to get slightly technical here.

[00:19:26] Speaker 04:
Despite some of the language we've seen, I think the language they refer to in Burrough, there's completely opposite language to that in Bond, where the court specifically said, we need to remand for the VA to make this determination about whether it's new and material in the first instance.

[00:19:44] Speaker 04:
And if so, then does it change the effective date?

[00:19:48] Speaker 04:
That language is in Bond at page 1368.

[00:19:52] Speaker 04:
most strongly and also at page 1367.

[00:19:55] Speaker 04:
And in both cases, as I think your honors noted during my colleagues' remarks, the court didn't say, well, if this hasn't been adjudicated, then the person gets benefits or gets the benefit of an early effective date.

[00:20:05] Speaker 04:
They remanded to VA, the court remanded to VA to make that determination about whether it's new and material evidence.

[00:20:13] Speaker 04:
As I was saying a moment ago, this also gets back to the mechanics of the regulation.

[00:20:18] Speaker 04:
The way this regulation works is that a claim that has become final, the 1992 decision here

[00:20:29] Speaker 04:
was a final decision and the claim became final.

[00:20:32] Speaker 04:
A claim that becomes final can be reopened by the submission of new and material evidence.

[00:20:38] Speaker 04:
And if that new and material evidence is submitted within one year of the claim, I'm sorry, of the final decision, then it can relate back to the final decision.

[00:20:50] Speaker 04:
But despite of some of the language in the borough, what we're talking about here is not claims that just remain open until VA adjudicates the issue.

[00:20:58] Speaker 04:
The claim is actually being reopened because there's new and material evidence.

[00:21:02] Speaker 04:
If you don't have new and material evidence, you're not going to satisfy that exception.

[00:21:06] Speaker 02:
What I understand correctly is that the claim was not open.

[00:21:10] Speaker 02:
And the issue raised was whether it should be real, because of new and material evidence.

[00:21:19] Speaker 02:
And all we have is...

[00:21:22] Speaker 02:
a decision now not to reopen the claim rather than to a decision to close an open claim.

[00:21:30] Speaker 02:
Is that the point?

[00:21:32] Speaker 04:
Yes, along those lines.

[00:21:33] Speaker 04:
And I would direct your honors on this issue to the VA rulemaking itself from 1990.

[00:21:39] Speaker 04:
We cited this rulemaking on the definition of new and material evidence at page 16 of our brief.

[00:21:44] Speaker 04:
Further down in the rulemaking, here's what VA said.

[00:21:46] Speaker 04:
And it goes to the point that what we're talking about is a reopening of the claim.

[00:21:50] Speaker 04:
The VA said in response to one of the comments about their definition,

[00:22:05] Speaker 04:
clout claims with evidence which cannot meet the standards set forth in the proposed definition which is the definition of new and material evidence uh... the current version of the regulation actually uses the word reopened specifically uh... backing i think nineteen ninety three uh... the it was a little different the regulation didn't use the word reopen and instead it was in the statute thirty eight uh... three u.s.c.

[00:22:30] Speaker 04:
five one one zero eight at that time talk about reopening the claim

[00:22:35] Speaker 04:
But today it's explicit in the regulation and we would argue, particularly based on that statement in the legislative history, that's always been the understanding that we're reopening a claim based on new and material evidence.

[00:22:46] Speaker 04:
And if indeed VA determines that the evidence is new and material, then I think one could rightly say that the claim was pending the whole time because there was new and material evidence that was never adjudicated.

[00:22:59] Speaker 04:
But here VA, and that was a possibility in Bond and Borough because no one had ever

[00:23:04] Speaker 04:
looked at the evidence.

[00:23:04] Speaker 04:
That's what the court said.

[00:23:05] Speaker 04:
There was no indication whatsoever in the record that VA had ever

[00:23:09] Speaker 04:
had ever looked at that evidence.

[00:23:11] Speaker 04:
Here, this case does come up to the court in a different posture because the VA essentially did what this court ordered it to do on remand in Bond and Burrough and looked at the evidence and said it's not new and material.

[00:23:24] Speaker 04:
It would not be a good idea to have a new and material evidence standard that is not at all dependent, exception to finality, that is not at all dependent on whether the evidence is new and material.

[00:23:35] Speaker 04:
It would be totally divorced from the regulation.

[00:23:39] Speaker 04:
One other issue that I wanted to address here is the issue, our argument in the alternative that VA addressed this evidence or made the requisite determination on an implicit basis in its 1996 determination rejecting

[00:24:00] Speaker 04:
rejecting Mrs. Deal's claim for her psychiatric disorder, again as it had in 1992.

[00:24:06] Speaker 04:
And I think the crux of the argument here is appellants point to a statement that the board made and the state is important in its 2021 decision at page 115 of the record.

[00:24:20] Speaker 04:
where the board says something to the effect of we didn't address this evidence in the 1996 decision.

[00:24:28] Speaker 04:
I mean, I think that statement is correct to the extent the board seems to be saying we didn't explicitly address that evidence.

[00:24:36] Speaker 04:
Obviously, in 2021, the board did not have the benefit of this court's decision in all of Pickett 2023 and 2025 decisions in all of Pickett, Hampton, and Williams, all of which held for the, I think,

[00:24:49] Speaker 04:
as far as this court goes for the first time, that there could be an implicit determination.

[00:24:55] Speaker 04:
It is clear on the face of that 1996 decision, it's at page 32 of the record, that VA stated specifically that part of the evidence it considered

[00:25:08] Speaker 04:
This is item number two under the list of evidence considered are Mrs. Geel's treatment records from the Alvin York VA Medical Center from 1992 to 1994, which include the particular treatment record that is the source of the new and material evidence allegation.

[00:25:25] Speaker 04:
in this case, VA went on to deny the claim for the same reasons it had denied the 1992 claim.

[00:25:32] Speaker 04:
So that does seem to be, first of all, I think it reconciles.

[00:25:36] Speaker 00:
You do contend that 3.156B was satisfied in this case in 1996 merely by the listing of the evidence.

[00:25:46] Speaker 04:
Well, not merely by the listing.

[00:25:49] Speaker 04:
VA made clear that it had considered that evidence, which is the listing.

[00:25:54] Speaker 04:
It went on to deny the claim for the same reasons that it denied the claim in 1992, because there was still nothing.

[00:26:01] Speaker 00:
The listing and saying it's being considered is sufficient to satisfy the obligation under 3.156b, is your contention?

[00:26:10] Speaker 04:
I would go slightly further than that, which is that they denied service connection for the same basis that they denied it in 1992.

[00:26:18] Speaker 04:
The issue was that there was still nothing, so far as VA was concerned, showing that her disorders related back to her time in service.

[00:26:28] Speaker 04:
I think the continuity, and this is what we said in our brief, the continuity between

[00:26:33] Speaker 04:
the nature of the denial in 1992 and the denial in 1996 means that VA was not finding this evidence to be new and material because it still didn't address the material issue.

[00:26:45] Speaker 04:
Therefore, regardless of what ultimately happened in the 1996 claim, the 1991 claim that was decided in 1992

[00:26:54] Speaker 04:
became final at least as of that date in 1996.

[00:27:02] Speaker 01:
What's the standard we apply when reviewing materiality?

[00:27:08] Speaker 04:
Well, materiality is a factual determination.

[00:27:11] Speaker 04:
So in truth, and we made the jurisdictional argument, this court lacks jurisdiction over any kind of dispute about whether the evidence was material or not.

[00:27:22] Speaker 04:
I think that's become academic because appellant has been so clear, at least in their reply brief, that they do not challenge the materiality.

[00:27:30] Speaker 04:
So I think at this point, all of us here have to accept the VA's determination that this evidence was not new and material.

[00:27:38] Speaker 04:
And again, that creates the problem.

[00:27:41] Speaker 04:
It would be a step too far for this court to say.

[00:27:43] Speaker 04:
It doesn't even matter for purposes of the new and material evidence exception whether the evidence is new and material.

[00:27:50] Speaker 04:
The party just gets the benefit of an earlier effective date or at least

[00:27:54] Speaker 04:
You know, the claim is open in that way at Infinitum.

[00:27:58] Speaker 04:
That's the difference here.

[00:27:59] Speaker 04:
There's been a determination.

[00:28:01] Speaker 04:
And that's why the court should, we respectfully request that the court affirm the decision.

[00:28:06] Speaker 00:
If we think 3.156B was not complied with by VA until 2021, does it make any difference to the outcome of this appeal?

[00:28:14] Speaker 04:
No, Your Honor, these are two alternative ways that the court could affirm the judgment of the Court of Appeals for Veterans Claims.

[00:28:23] Speaker 04:
We think that even if VA first made this determination in 2021, it is still dispositive because you can't have an exception for new and material evidence to the finality of the 1992 decision without something that someone has determined is new and material evidence.

[00:28:42] Speaker 00:
But we would have to say

[00:28:44] Speaker 00:
On the 2021 theory that the claim was, as you argued, closed in 1992, and the issue was whether it should be reopened.

[00:28:56] Speaker 00:
We couldn't affirm, I think, if we agree with the appellant or the petitioner that the 1991 claim remained open till 2021.

[00:29:07] Speaker 04:
I think, Your Honor, is correct.

[00:29:09] Speaker 04:
I think that theory would be inconsistent with the nature of the regulation.

[00:29:15] Speaker 04:
I mean, it's explicit in the 2025 version of the regulation.

[00:29:20] Speaker 04:
I think that certainly if there's evidence out there, like in the case of Bond and Bureaux, that seems like it might be new and material,

[00:29:30] Speaker 04:
that the court still needs to, I'm sorry, that the VA still needs to adjudicate.

[00:29:34] Speaker 04:
There's a possibility that the claim remains open or pending.

[00:29:38] Speaker 04:
But it's not actually open until there's, it can't be reopened without new and material evidence.

[00:29:47] Speaker 04:
I mean, I guess I'm constrained.

[00:29:49] Speaker 04:
The last analogy I would make is this court deals a lot of time with cue claims, right?

[00:29:53] Speaker 04:
Clear and unmistakable error is another basis on which an old determination can be reopened.

[00:30:01] Speaker 04:
And the court does so all the time.

[00:30:03] Speaker 04:
That doesn't mean that the claim was open that whole time.

[00:30:07] Speaker 04:
If there's a determination that there's cue, even if that error existed for however long,

[00:30:14] Speaker 04:
the claim might be reopened on that basis, but you wouldn't say it's been open that whole time.

[00:30:21] Speaker 04:
And this is not a case where VA was being draconian.

[00:30:26] Speaker 04:
Ultimately, after this 2016 grant and a remand from the Court of Appeals for Veterans claims, VA did grant Mrs. Deal an effective date all the way back to her 1995 claim.

[00:30:42] Speaker 04:
based on a determination that some of the evidence submitted after that was new and material.

[00:30:47] Speaker 04:
We just found that this evidence going back to the 1991 claim was not new and material.

[00:30:53] Speaker 02:
We respectfully request a firm.

[00:31:04] Speaker 03:
I have two points, Your Honor.

[00:31:05] Speaker 03:
Number one, it's important to understand that 3156B does a lot of different things.

[00:31:10] Speaker 03:
As the secretary talked about, it does reopen a final claim.

[00:31:15] Speaker 03:
But that presupposes a final claim.

[00:31:18] Speaker 03:
The 1992, no, sorry, the 1991 claim was not final until one year after the 1992 decision.

[00:31:25] Speaker 03:
And Barad says that because this evidence triggered 3156B, the claim remained open.

[00:31:31] Speaker 03:
So the materiality of the evidence is irrelevant until it becomes final, which did not happen, which it still is not final, technically, because it's been appealed.

[00:31:43] Speaker 03:
The regulation also treats new and material evidence treated as if it was submitted with the claim.

[00:31:50] Speaker 03:
That part of it doesn't really apply to this case.

[00:31:53] Speaker 03:
But then the third thing that it does, or at least the third thing, is that under BRAD, the VA is required, when it receives evidence that triggers this regulation, to provide a responsive determination in telling the veteran whether the evidence is new and material.

[00:32:07] Speaker 03:
The notice of that responsive determination

[00:32:10] Speaker 03:
with appellate rights is what finalizes that earlier claim.

[00:32:14] Speaker 03:
And whereas here, that didn't happen until after the claim was granted, after Mrs. Deal appealed the effective date and appealed it all the way up to this court, the earlier claim remains pending.

[00:32:27] Speaker 03:
with respect to the idea that the 1996 decision implicitly adjudicated this claim.

[00:32:36] Speaker 03:
This is what the board said, and I'm reading appendix 115.

[00:32:39] Speaker 03:
However, the May 1996 rating decision did not address the May 1993 VAMC medical opinion.

[00:32:49] Speaker 03:
And so this is also a factual determination.

[00:32:53] Speaker 03:
This court lacks jurisdiction to review any facts.

[00:32:57] Speaker 03:
The veterans court, I'm sorry, the secretary under 7252A cannot appeal the board's decision.

[00:33:04] Speaker 03:
This fact finding by the board is dispositive, is undisputed.

[00:33:09] Speaker 03:
It doesn't matter that there was a change in law.

[00:33:11] Speaker 03:
The board made this fact finding.

[00:33:13] Speaker 03:
This court is not permitted to go back under its

[00:33:16] Speaker 03:
jurisdictional statute and reassess whether the 1996 decision implicitly considered the evidence.

[00:33:23] Speaker 03:
So we would again ask for reversal that the date of claim under 5110 is the 1991 claim and in order to remand for fact-finding whether she met the other requirements.

[00:33:34] Speaker 02:
Thank you.