[00:00:02] Speaker 01:
Good morning.

[00:00:05] Speaker 01:
We have five cases on the calendar this morning.

[00:00:09] Speaker 01:
A veteran's case, two cases from the Court of Federal Claims, patent office case, and an employee case.

[00:00:19] Speaker 01:
The employee case and one of the claims cases are being submitted on the briefs and therefore are not being argued.

[00:00:25] Speaker 01:
First case is

[00:00:27] Speaker 01:
Cleaver versus the Secretary of Veterans Affairs, 2015, 7044.

[00:00:33] Speaker 01:
Mr. Copy.

[00:00:35] Speaker 02:
Thank you, Your Honor.

[00:00:36] Speaker 02:
May it please the court?

[00:00:37] Speaker 02:
Kenneth Carpenter, appearing on behalf of Gloria Cleaver, the widow of the veteran James Lee Cleaver.

[00:00:45] Speaker 03:
Excuse me.

[00:00:46] Speaker 03:
This case, Your Honor, involves the question of the legal standard to determine whether or not a claim has been reasonably raised in a proceeding

[00:00:55] Speaker 03:
before the Department of Veterans Affairs.

[00:00:58] Speaker 03:
In this case, the board used the wrong legal standard based upon an incorrect legal instruction that came from the board, excuse me, from the court in its 2011 remand.

[00:01:09] Speaker 03:
I'd like to direct the court's attention.

[00:01:15] Speaker 01:
Isn't this basically whether an informal claim had been made?

[00:01:18] Speaker 01:
Isn't that a fact question?

[00:01:21] Speaker 03:
No, Your Honor, it's a question of law because this

[00:01:24] Speaker 03:
Excuse me, because this court, in a series of cases, determined what the legal standard is for determining whether or not a claim has or has not been legally raised.

[00:01:34] Speaker 03:
That is not a factual matter.

[00:01:36] Speaker 05:
Well, the proper legal standard for determining whether a claim has been raised is clearly a legal question.

[00:01:41] Speaker 05:
Yes.

[00:01:41] Speaker 05:
But whether a claim has actually been raised is a fact question.

[00:01:45] Speaker 05:
I understand your argument is that they applied the wrong legal standard in determining that fact question.

[00:01:50] Speaker 05:
Isn't that your argument?

[00:01:51] Speaker 03:
Yes.

[00:01:54] Speaker 03:
With respect, John, I'm not sure how you make that distinction.

[00:02:00] Speaker 05:
Well, if they'd use the right legal standards in determining whether a claimant had been filed, and they had determined under the right legal standard that a claim had not been filed, then that would be a factual question we couldn't review.

[00:02:13] Speaker 05:
But in your view, they applied the wrong legal standard, and I think you have a pretty good point here in the language they're using.

[00:02:20] Speaker 05:
But it's a different question than whether a claim had actually been filed or not.

[00:02:26] Speaker 03:
Well, clearly, no claim had been filed on the mental condition in this case.

[00:02:31] Speaker 03:
In this case, the original application that was made was for a knee condition.

[00:02:35] Speaker 05:
But isn't that the question, whether a claim had been filed?

[00:02:40] Speaker 05:
I mean, I understand you agree.

[00:02:42] Speaker 05:
Well, OK, I want to see where we're going with this, because I'm not sure where you are.

[00:02:46] Speaker 05:
It seems like you agree that no formal claim has been filed, and that was worn out by the record.

[00:02:50] Speaker 05:
What we're arguing about is whether an informal claim had been filed.

[00:02:54] Speaker 03:
Well, Your Honor, I think it's a mistake to use the characterization of informal claim, whether or not a claim was raised by the evidence.

[00:03:02] Speaker 03:
Informal claim, and I think this is where the lower court got into difficulties, because it used the definition of informal claim as defined by the VA in its regulations.

[00:03:14] Speaker 03:
This is a claim that is raised by the veteran and by the evidence, by his actions before the agency

[00:03:23] Speaker 03:
and his medical evidence.

[00:03:27] Speaker 03:
And those are to be liberally read, not to be determined whether or not they are clearly and unmistakably presenting a claim.

[00:03:34] Speaker 03:
Right, right.

[00:03:34] Speaker 03:
I get you on that.

[00:03:35] Speaker 05:
But there still has to be a claim raised.

[00:03:37] Speaker 05:
That's correct.

[00:03:37] Speaker 05:
He has to have filed a claim in some sense.

[00:03:42] Speaker 05:
Are you trying to suggest that

[00:03:44] Speaker 05:
the requirements that a claim be in writing, whether a formal claim or an informal claim, don't apply?

[00:03:50] Speaker 03:
No, Your Honor.

[00:03:51] Speaker 03:
They apply, but they apply in this case with the original application.

[00:03:56] Speaker 03:
It's about everything that happens after that original claim has been filed.

[00:04:01] Speaker 03:
And it's demonstrated in this case when we look at the 1973 decision on July 12, 1973,

[00:04:10] Speaker 03:
If you look at the record at page 53.

[00:04:12] Speaker 05:
Wait, let me see.

[00:04:14] Speaker 05:
I think I see where you're going, but let me make sure.

[00:04:17] Speaker 05:
You agree that that original formal claim he filed didn't claim a mental condition.

[00:04:23] Speaker 05:
Correct.

[00:04:24] Speaker 05:
And so what we have to look is see whether he claimed the mental condition at some point later in time.

[00:04:31] Speaker 05:
Are you saying that it can, once he files a claim on any condition, the VA has the obligation to see whether he has

[00:04:41] Speaker 03:
whether the evidence or any of his statements suggest that there is a basis in the record for additional conditions which should be compensated.

[00:04:54] Speaker 01:
But that's fact-based, in the record, as you say.

[00:04:59] Speaker 01:
But it is evidence in the record.

[00:05:00] Speaker 03:
Well, but with respect, Your Honor, it's the legal standard that was used to determine whether or not that factually existed.

[00:05:08] Speaker 03:
The distinction that I was trying to make with Judge Hughes is that in reviewing the decision, the decision itself in 1973 does not identify any specific claims.

[00:05:22] Speaker 03:
And what it says is the service-connected conditions shown below.

[00:05:27] Speaker 03:
And then it describes those based upon the medical record.

[00:05:31] Speaker 03:
And then the finding is that there is entitlement to service connection for his needs.

[00:05:37] Speaker 03:
for a scar and a fractured toe.

[00:05:40] Speaker 03:
Neither the scar nor the fractured toe were part of the original application.

[00:05:45] Speaker 03:
They were reasonably raised by the evidence of record.

[00:05:48] Speaker 05:
But the VA can always go beyond the claim and grant additional service condition connections, but it seems like you still have to, if they choose not to, you still have to raise a claim with them.

[00:06:01] Speaker 05:
I think it seems to me like you're taking Moody and Roberson in those cases a little further than even those cases go, because those cases suggest that the claim itself reasonably raised the service connection condition here.

[00:06:18] Speaker 05:
I mean, Roberson, I think, is the TDIU claim.

[00:06:21] Speaker 05:
It's where it said, I have this service-connected injury, but I also want all the benefits I can get.

[00:06:27] Speaker 05:
And so that reasonably raised the TDIU claim.

[00:06:30] Speaker 05:
But that's assuming that that claim can be construed to actually raise that.

[00:06:38] Speaker 05:
And it seems like you're saying the 73 claim doesn't raise the mental condition, but subsequent events not connected to anything in writing can reasonably raise a claim for mental condition.

[00:06:50] Speaker 05:
Is that your... That is correct, Your Honor.

[00:06:53] Speaker 05:
What's your support for that case?

[00:06:55] Speaker 03:
Support in law or support in the record?

[00:06:58] Speaker 05:
Support in law, I mean, because I think it sputs up against the requirement that claims have to be in writing.

[00:07:04] Speaker 03:
No, and that's the difference between a informal claim under 3.155, which is putting the VA on notice of a desire to file a claim.

[00:07:16] Speaker 03:
And in that case, there must be a clear expression of a desire.

[00:07:20] Speaker 03:
Here, we're talking about once the process has begun,

[00:07:24] Speaker 03:
then the VA is supposed to be the veteran's advocate.

[00:07:28] Speaker 03:
They are supposed to be fully developing the record.

[00:07:31] Speaker 03:
And if one reads the 1973 decision, there is more discussion about the mental condition than any of the physical conditions.

[00:07:39] Speaker 03:
And yet, on its face, we do not see a definitive decision one way or the other.

[00:07:46] Speaker 03:
And then when we look at the notice, there is notice to the veteran of the awards

[00:07:51] Speaker 03:
But no mention whatsoever of the decision.

[00:07:55] Speaker 03:
Then we have to look back at the record.

[00:07:57] Speaker 03:
The record then demonstrates that in the 1973 exam, the patient talked about his emotional illness.

[00:08:05] Speaker 03:
There's a VA record in May of 73 that gives a provisional diagnosis of paranoid schizophrenia.

[00:08:11] Speaker 03:
And then the May 73 discharge summary describes manifestations of psychosis.

[00:08:16] Speaker 05:
So I get it.

[00:08:16] Speaker 05:
I understand what you're saying.

[00:08:17] Speaker 05:
But isn't that a little problematic in terms of the way

[00:08:21] Speaker 05:
the timing works for benefit because it essentially because everything is timed off either the claim the date of the claim or the date the condition arose whichever is later.

[00:08:32] Speaker 05:
And the way that's been applied is for the date the claim is you look to an actual claim but you seem to suggest that once you file a claim for service connection for any condition whatsoever

[00:08:48] Speaker 05:
In the course of treatment of this veteran, when something becomes apparent, we should consider that a claim too.

[00:08:54] Speaker 05:
But that makes it very amorphous as to when the effective date is.

[00:08:57] Speaker 03:
Well, with respect, Your Honor, I think it's the fact that so far we are using imprecise descriptions.

[00:09:04] Speaker 03:
What we have is not a claim.

[00:09:07] Speaker 03:
No claim is made.

[00:09:09] Speaker 03:
What is made is an application for compensation.

[00:09:12] Speaker 03:
When the veteran fills out the 526, he asks the VA to award

[00:09:18] Speaker 03:
compensation based upon his or her service-connected disability.

[00:09:23] Speaker 05:
So you're asking us to go beyond Roberson and basically say that when any time a claim is filed upon any condition, the VA is obligated to consider that as a claim for service connection for any possible disease or injury that may become apparent during the course of treatment.

[00:09:39] Speaker 03:
What I am asking this court to do is to affirm the decision in those lines of cases

[00:09:44] Speaker 03:
that the VA has an affirmative obligation to liberally read the record.

[00:09:51] Speaker 05:
But I don't think that's what those cases say.

[00:09:53] Speaker 05:
They say you have to liberally read the claim filed, but not the subsequent record to determine whether something in the subsequent record fleshes out that claim.

[00:10:07] Speaker 05:
I mean, Roberson was just about the claim.

[00:10:10] Speaker 05:
Moody was just about whether a claim had been filed.

[00:10:13] Speaker 03:
With respect, it's not about the claim.

[00:10:16] Speaker 03:
It's about the issue.

[00:10:17] Speaker 03:
In Roberson, it was about the additional issue of extra scheduler that had to be considered and was not considered as part of the totality.

[00:10:26] Speaker 05:
But our holding in Roberson was that the reason that had to be considered was because the claim that was filed noted these conditions, noted that it completely negated the veterans' ability to seek employment.

[00:10:41] Speaker 05:
And so that claim itself,

[00:10:44] Speaker 05:
even though it may not have said it in terms of TDIU, reasonably raised TDIU.

[00:10:49] Speaker 05:
And that's what we were looking on.

[00:10:50] Speaker 05:
That's a claim.

[00:10:51] Speaker 03:
That's right.

[00:10:51] Speaker 03:
And in this case, we have the issue of whether or not there is a service-connected disability from a mental condition in the one-year window following discharge from service for a chronic mental illness.

[00:11:04] Speaker 03:
And I see I'm getting into my rebuttal time, but I'd like to direct the Court's attention to the August 1990 rating decision

[00:11:11] Speaker 03:
which is in the record at 60.

[00:11:13] Speaker 03:
Because I think it's very important for this court to read that decision in context.

[00:11:18] Speaker 03:
That decision relies exclusively on the 1973 medical evidence.

[00:11:24] Speaker 05:
Before you go away, can I ask you just one more question?

[00:11:28] Speaker 05:
You agree that the 73 claim doesn't raise a mental condition claim?

[00:11:33] Speaker 03:
The application.

[00:11:33] Speaker 05:
The application in 73.

[00:11:36] Speaker 05:
Is there any other document in writing you can point to

[00:11:39] Speaker 05:
that the veteran raised this mental condition claim?

[00:11:44] Speaker 03:
In the March 1973 VA psych examination, the examiner says, the patient says of his emotional illness.

[00:11:57] Speaker 03:
So in my view, he is telling the examiner that I have an emotional problem.

[00:12:03] Speaker 03:
And then when you read through that, and if I could just finish my thought about 1990,

[00:12:08] Speaker 03:
In 1990, when they grant the benefits, there is no contemporaneous examination.

[00:12:15] Speaker 03:
In fact, they note that the veteran couldn't be examined because he was incarcerated at the time.

[00:12:20] Speaker 03:
Therefore, there is no difference in the record in 1990 than there was in the record in 1973.

[00:12:26] Speaker 03:
And this court has adopted the implicit denial doctrine.

[00:12:30] Speaker 03:
And clearly, what we have here is an implicitly denied decision on mental condition that is fully laid out in the 1973 decision.

[00:12:39] Speaker 03:
And then when they reopen the case, and I'm not quite sure what the new and material evidence is, because they don't identify any new and material evidence, they grant the benefit.

[00:12:51] Speaker 03:
I reserve the balance of my time.

[00:12:52] Speaker 01:
Thank you.

[00:12:52] Speaker 01:
We will save it for you, Mr. Coffman and Mr. Norway.

[00:13:04] Speaker 04:
May it please the court?

[00:13:05] Speaker 05:
Can I actually just direct you straight to the Veterans Court opinion at page 9 of the addenda?

[00:13:15] Speaker 05:
Because it seems to repeat the same error that the board made in requiring the veteran to show that a claim was filed by clear and commencing evidence, clear and unmistakable evidence.

[00:13:27] Speaker 05:
You agree that that's not the right standard, don't you?

[00:13:31] Speaker 04:
Correct, Your Honor.

[00:13:33] Speaker 04:
But the veteran court then goes on and talks about the standard that should be applied to the factual predicates.

[00:13:41] Speaker 04:
The factual determination of whether a claim was filed would be raised on a full and sympathetic reason.

[00:13:49] Speaker 05:
But how do we know what standard they're applying?

[00:13:51] Speaker 05:
Because at various points throughout this opinion, they either say the veteran had to clearly establish

[00:13:59] Speaker 05:
that there was an error, which seems to be referring to this clear and unmistakable standard, or they do, at other points, parrot the correct standard.

[00:14:10] Speaker 04:
Indeed, the 2012 board decision is a little confusing in that.

[00:14:16] Speaker 04:
And the language that the balance really focuses on in that opinion that talks about the Q standard can't really be divorced from the context, not only of that decision, what the board actually did,

[00:14:29] Speaker 04:
And if you look at it, the board went through every piece, every record that was before the regional office in 1973.

[00:14:39] Speaker 04:
So it was providing the full and sympathetic reading of all of the evidence that the appellant here is asking for.

[00:14:47] Speaker 04:
And also, you can't divorce it from the context of the prior proceedings where the board initially, and this is in 2009 board decision,

[00:14:59] Speaker 04:
looked at just the full and sympathetic reading of the original claim.

[00:15:04] Speaker 04:
Then in 2011, the Veterans Court recognized that there was a suggestion in the medical records that another claim may have been filed but was not of the record.

[00:15:16] Speaker 04:
And that's why it remanded back to the board for determination, a factual determination, whether an informal claim was in fact filed but was not of record.

[00:15:25] Speaker 04:
And that is the

[00:15:27] Speaker 05:
But that's the problem with this.

[00:15:29] Speaker 05:
I mean, the board made a factual finding, but it seems to have made it under an improper standard.

[00:15:36] Speaker 05:
And so how can we, you know, ignore the fact that there was legal error in that standard?

[00:15:42] Speaker 04:
It's the way the board applied it.

[00:15:46] Speaker 04:
And the board clearly recognized that it did have... I don't know.

[00:15:50] Speaker 05:
I mean, you know, I can...

[00:15:52] Speaker 05:
You know this paragraph that I'm talking about on page 27 of the addendum, which is the board's opinion.

[00:15:57] Speaker 05:
It repeats that same language.

[00:15:59] Speaker 05:
In order to find that there was Q, the evidence must be more strongly suggestive.

[00:16:05] Speaker 05:
It must be more than suggestive, even strongly show.

[00:16:08] Speaker 05:
It must be clear and unmistakable that the VA had a claim before it.

[00:16:12] Speaker 05:
That's not the right standard, right?

[00:16:14] Speaker 05:
If there is a requirement for the poll and some reading of the... I mean, you have to show clear and unmistakable error in the decision itself, but whether a claim has been filed or not is just done under a normal factual standard, right?

[00:16:30] Speaker 05:
Even in the context of a Q claim, you look at the record and see whether a claim has been filed.

[00:16:34] Speaker 04:
Right, and that is the teaching of Moody and Semraj.

[00:16:40] Speaker 04:
The determination as to whether there was a cue, that decision is made in light of the standards that typically govern the final decision.

[00:16:52] Speaker 05:
But how do we get around that error?

[00:16:56] Speaker 04:
We look at what the board actually did.

[00:16:58] Speaker 04:
And in this case, it went through every piece of evidence.

[00:17:04] Speaker 04:
It commented on the statements that were in those records, and it made a factual determination that even in view of all of those, there could be other reasons why a mental exam was issued.

[00:17:21] Speaker 04:
And also, in this case, none of the records before the regional office in July of 1973

[00:17:29] Speaker 04:
contain a diagnosis of a mental disorder.

[00:17:32] Speaker 04:
There's a suggestion that something might be there, but there is no evidence in the record to say that he had a mental disease.

[00:17:41] Speaker 04:
There was the March record, which said there was not enough information for her to make a diagnosis.

[00:17:47] Speaker 05:
If the veteran had raised in his conversation with the doctor that he had a mental condition that was service-connected, which was then noted in the doctor's report and then sent to the RO,

[00:17:57] Speaker 05:
Does that reasonably raise a claim for service connection for a mental condition?

[00:18:01] Speaker 04:
Not under the VA regulations for an informal claim, 3.155.

[00:18:08] Speaker 04:
Those regulations require the communication to be in writing and to be from the claimant or a limited category of individual society's claimant.

[00:18:20] Speaker 05:
And a VA doctor is not one of them?

[00:18:22] Speaker 04:
The VA doctor is not one of the enumerated people in 3.155.

[00:18:28] Speaker 04:
That regulation requires that the written communication be from a claimant, his duly authorized representative, a member of Congress, or some person acting as his next friend of the claimant.

[00:18:41] Speaker 04:
It goes on further in subsection B to require

[00:18:45] Speaker 04:
a power of attorney to have been executed at the time the writing was made.

[00:18:49] Speaker 04:
So for practical purposes, you typically would not see a VA examiner who would meet any of all of those requirements of the regulation.

[00:19:02] Speaker 00:
How do you respond to the appellant's argument that Moody and Roberson require the board to not just look at the original application, but also look at later record evidence to see whether a claim has been made?

[00:19:15] Speaker 04:
Well, in order to raise a claim, number one, the statutory system is designed, and this is in 5107, the claimant has the responsibility to present and support claim for benefits.

[00:19:30] Speaker 04:
So it has to make a claim for a benefit.

[00:19:33] Speaker 04:
It has to put the VA on notice that he wants a claim for that so it can then adjudicate that claim.

[00:19:42] Speaker 04:
The problem with the felon's argument here is that if the requirements of an informal claim can be avoided in that way, then the VA will have a very difficult time in actually trying to figure out what claims are being made when.

[00:20:06] Speaker 04:
And the statute 5107, and then there's also

[00:20:11] Speaker 04:
5101 provides the Secretary of the Authority to prescribe the requirements for making a claim and the Secretary has done that in the regulations and for informal claims, claims that were not formally made, it's in 3.155 paragraph A. So your view is that Moody and Roberson have to be read in light of that?

[00:20:37] Speaker 04:
Correct.

[00:20:39] Speaker 04:
So in order for

[00:20:40] Speaker 04:
In order for the VA's duty to assist and adjudicate the claim, there first has to be a claim made.

[00:20:59] Speaker 04:
On the jurisdictional grounds, we can see that the legal standard, whether the correct legal standard was applied, falls within this court's jurisdiction, but we're really making the argument that the

[00:21:10] Speaker 04:
arguments here are essentially disputes with the factual determinations of the Board and the Veterans Court.

[00:21:18] Speaker 04:
For those reasons, this Court should dismiss them.

[00:21:22] Speaker 05:
Also, when it comes to the second legal argument on... Again, how do we know that those factual resolutions by the Board would have come out the same way under the correct legal standard?

[00:21:37] Speaker 05:
You just say the rest of the opinion makes that clear?

[00:21:40] Speaker 05:
correct, Your Honor.

[00:21:42] Speaker 05:
That sounds to me an awful lot like a harmless error argument.

[00:21:45] Speaker 05:
Did you make that argument in your brief?

[00:21:47] Speaker 04:
We did not explicitly make a harmless error argument, Your Honor.

[00:21:51] Speaker 04:
We made the argument that the board applied, going through its opinion, the board applied the correct standard, that it did conduct a synthetic reading.

[00:22:07] Speaker 04:
So on the second issue,

[00:22:11] Speaker 04:
We asked the court to, on credential grounds, decline the exercise jurisdiction over the issue of interpretation of the VA regulations on the grounds that the underlying factual determination has already been made.

[00:22:31] Speaker 04:
And because they've already been made, that the ultimate outcome of this case would not be affected by this court

[00:22:40] Speaker 04:
addressing and even adopting the view of the appellant that the informal claim can be made in a medical record by the medical record recording the statement.

[00:22:55] Speaker 05:
I don't really understand that at all.

[00:22:57] Speaker 05:
I mean, if we found as a matter of law that recognition of a veteran's claim or veteran's statement to a medical professional that's put into a VA medical report can be an informal claim,

[00:23:09] Speaker 05:
then we have that document in the record and it seems like that would suggest that to the extent the board applied the wrong legal standard that they should reconsider that.

[00:23:19] Speaker 05:
So it seems to me we do have to decide whether a medical record can be an informal claim or not.

[00:23:27] Speaker 04:
Well I guess that depends upon the court's determination of the first legal issue or the first issue on appeal.

[00:23:34] Speaker 04:
Well I think there's very little doubt that

[00:23:36] Speaker 05:
it's pretty close to legal error and the standard applied by the board and even applied by the Veterans Court.

[00:23:43] Speaker 05:
But the real question is whether there's anything in the record that even given that legal error, you could tie a formal or informal claim to.

[00:23:54] Speaker 05:
And I don't think the 73 claim does it, but if we find that a doctor's report can, that could be it.

[00:24:02] Speaker 05:
So why can't that medical report be considered an informal claim?

[00:24:07] Speaker 04:
And because the medical court itself does not qualify, it doesn't meet the requirements of 3.155.

[00:24:16] Speaker 04:
It is not a written communication from the claimant.

[00:24:21] Speaker 05:
What is a written communication?

[00:24:23] Speaker 05:
Communicating, I mean read liberally, the claimant's desire to seek service connection for his mental condition.

[00:24:30] Speaker 04:
Right, but the written communication was from the VA medical examiner, not from the claimant.

[00:24:36] Speaker 04:
And the text of the regulation requires the communication to be from the claimant or one of those... Was it a communication or a recording?

[00:24:47] Speaker 04:
The text of 3.155 refers to a communication, but at this court... Which implies two parties, communicator and the communicative.

[00:24:59] Speaker 05:
Correct.

[00:25:00] Speaker 01:
Was there communicative here or simply a recording of the fact?

[00:25:08] Speaker 04:
Well, it would have to be the reason for the claim, and this is 5107, it's the claimant's responsibility to present the claim to the benefits, to the benefit side of the VA.

[00:25:26] Speaker 04:
that you look at at 155 and say that there has to be a communication between we have defined in the regulation who it's from has to be to the benefits side of the VA.

[00:25:40] Speaker 04:
And when you have a medical record, that's not the folks who will be deciding the benefits.

[00:25:48] Speaker 05:
But the record was forwarded to the RO, wasn't it?

[00:25:51] Speaker 04:
That is correct.

[00:25:52] Speaker 05:
So it seems to be splitting hairs.

[00:25:56] Speaker 05:
if the veteran had gotten a copy of this medical report and forwarded it to the VA, the RO, sorry, and circled the statement that said veteran is seeking benefits based upon mental condition, that would qualify, wouldn't it?

[00:26:13] Speaker 04:
Well, that would be a communication from the claimant to the benefits.

[00:26:18] Speaker 05:
So the fact that it's sent from the veteran rather than the doctor is what makes all the difference.

[00:26:24] Speaker 04:
Right, and that makes sense administratively when you're looking at all of these cases.

[00:26:29] Speaker 04:
The VA has to have some way to focus in on the exact claims for benefits that the claimant is looking for.

[00:26:40] Speaker 04:
And that's what this regulation does.

[00:26:41] Speaker 04:
It allows them to look to a limited number of documents, just not any document.

[00:26:45] Speaker 05:
And if you see in some of the cases, and I like the- It seems like an awfully difficult burden to place on a veteran who's obviously suffering from a serious mental disease.

[00:26:57] Speaker 04:
Well, Your Honor, they do have to present a claim.

[00:27:03] Speaker 04:
And in this case, it's an original claim.

[00:27:05] Speaker 04:
The VA did order a complete medical exam and was

[00:27:10] Speaker 04:
was doing that, and before they could come to a decision about whether or not he had a mental illness, he walked away.

[00:27:21] Speaker 04:
To the extent there's a duty to assist, that's more than just a one-way street.

[00:27:27] Speaker 04:
I think the VA was trying to do that here.

[00:27:31] Speaker 04:
They just did not get to a point where it could make a decision, where it could

[00:27:36] Speaker 04:
say, like it did with the scar and the fingers, that there was a condition.

[00:27:43] Speaker 04:
There was no diagnosis in any of the records before the July 1973 Regional Office decision.

[00:27:53] Speaker 04:
And I see my time is up.

[00:27:56] Speaker 04:
There are no more questions.

[00:27:58] Speaker 04:
For these reasons and the reasons you briefed, we ask that the court affirm the judgment of the Veterans Court.

[00:28:04] Speaker 01:
Thank you, Mr. Noway.

[00:28:05] Speaker 01:
Mr. Coppenter has a little rebuttal time.

[00:28:12] Speaker 03:
May it please the court, the VA's attempt to use 3.155 is simply not appropriate.

[00:28:18] Speaker 03:
3.155 is intended to be a beneficial regulation for a veteran who is seeking to put the VA on notice that they want to file a claim before they've made an application.

[00:28:31] Speaker 03:
That doesn't apply in this case.

[00:28:33] Speaker 03:
There was an application in place.

[00:28:36] Speaker 03:
And then the VA completely disregards the reality that they took an application on a knee and granted it for two additional conditions for which there was no meeting of their 3.155 requirements.

[00:28:50] Speaker 03:
Now, you can't have it both ways.

[00:28:52] Speaker 03:
You can't adjudicate two claims and then the majority of your discussion and the rating decision is about the mental condition

[00:29:00] Speaker 03:
and say we didn't make a decision on the mental condition.

[00:29:03] Speaker 03:
They most certainly did.

[00:29:04] Speaker 03:
They made an implied denial of that condition.

[00:29:10] Speaker 03:
And we know that because the record in 1990, they took up the exact same evidence with no diagnosis of schizophrenia in the record that they quoted as the VA would suggest.

[00:29:23] Speaker 03:
I would suggest to you that the multiple references to provisional diagnosis of schizophrenia and a diagnosis that was affirmed in May of 1993 by the VA medical record of schizophrenia is a distinction without a difference because we are dealing with a presumptively service-connected psychosis.

[00:29:45] Speaker 03:
The criteria for a presumptively service-connected psychosis that develops within the one year following discharge

[00:29:52] Speaker 03:
which is the time frame that we're in here, requires only symptoms and manifestations to a degree of 10% or more.

[00:30:00] Speaker 03:
Clearly, the symptoms that were described of this mental illness, of disturbing hallucinations, were at a level of 10% or more.

[00:30:08] Speaker 03:
There should have been an award in 1973.

[00:30:11] Speaker 05:
So I think you referenced that you think that they implicitly denied the mental condition claim.

[00:30:20] Speaker 05:
That would be a decision that you'd have to attack for Q, right?

[00:30:23] Speaker 03:
Which is precisely what they did.

[00:30:25] Speaker 05:
And so you think that the record clearly establishes that that decision was Q?

[00:30:31] Speaker 03:
Yes.

[00:30:33] Speaker 02:
Yes.

[00:30:34] Speaker 02:
Okay.

[00:30:35] Speaker 02:
Any further questions?

[00:30:35] Speaker 01:
Thank you, Mr. Cobbiger.

[00:30:37] Speaker 01:
We'll take the case under revisions.