[00:00:13] Speaker 03:
Bill, I understand you think that was all by yourself.

[00:00:41] Speaker 03:
Okay.

[00:00:42] Speaker 02:
Okay.

[00:00:42] Speaker 02:
The final case before the court is Stewart versus McDonald.

[00:00:46] Speaker 02:
An appeal from the Court of Veterans Affairs.

[00:00:50] Speaker 02:
Case number 147110.

[00:00:52] Speaker 02:
All right.

[00:00:52] Speaker 02:
Ms.

[00:00:53] Speaker 02:
Odom, I understand that you have reserved three minutes for the bottle.

[00:01:01] Speaker 02:
Is that right?

[00:01:02] Speaker 02:
I have.

[00:01:03] Speaker 02:
Okay.

[00:01:04] Speaker 02:
All right.

[00:01:04] Speaker 02:
Proceed.

[00:01:06] Speaker 00:
Thank you, Amy.

[00:01:06] Speaker 00:
He's the court.

[00:01:08] Speaker 00:
I'm Amy Odom.

[00:01:09] Speaker 00:
I represent the appellant.

[00:01:11] Speaker 00:
Gulf War veteran Patricia Stewart.

[00:01:13] Speaker 00:
In this case, both the board and the Veterans Court made the factual determination that Ms.

[00:01:20] Speaker 00:
Stewart's 2006 claim for stomach problems encompassed irritable bowel syndrome, or IBS.

[00:01:28] Speaker 04:
The RO denied that claim in 2007, and in 2007... Well, when you say that she made the claim, I guess it's

[00:01:36] Speaker 04:
open to questions, or at least I have a question as to whether that was part of her original claim back in 2005.

[00:01:44] Speaker 00:
In 2005, it still would have been part of that claim.

[00:01:49] Speaker 04:
And you say that not because she said anything about IBS, but rather because the symptoms were consistent with IBS and could have been read to extend to IBS?

[00:02:03] Speaker 00:
Exactly, and I believe that under this court's case law, the VA had an affirmative duty to construe the claim, the general claim for stomach problems to include IBS.

[00:02:13] Speaker 00:
Okay, go ahead.

[00:02:15] Speaker 00:
Especially in 2007 when the VA treatment records that the rating decision listed as having been considered in conjunction with the claim raised the possibility of IBS.

[00:02:27] Speaker 02:
Did she ever object to the fact that at the time or later in 2008 that they decided to treat her request that they look again at IBS because she had some additional medical records, that they would treat that as a new claim?

[00:02:47] Speaker 00:
No, Ms.

[00:02:48] Speaker 00:
Stewart didn't raise a specific objection to that, but it wasn't her duty to do so.

[00:02:53] Speaker 00:
The veteran's adjudication system is set up, as this court has recognized, to protect the layperson unsophisticated veteran.

[00:03:03] Speaker 00:
The veteran isn't charged

[00:03:04] Speaker 00:
with knowing how to correctly construe a claim and to process it under 7105.

[00:03:10] Speaker 00:
That's on the VA.

[00:03:12] Speaker 00:
The fact that the VA didn't do it here isn't on Ms.

[00:03:16] Speaker 00:
Stewart to pursue the agencies.

[00:03:19] Speaker 00:
It's the agency's obligation to process the claim correctly.

[00:03:25] Speaker 00:
And as soon as she submitted that 2008 notice of disagreement to the 2007 decision denying the claim for stomach problems and specifying that she was appealing all conditions claimed, under 7105, the only thing that the VA

[00:03:42] Speaker 00:
could have done to honor that notice of disagreement was to issue the statement of the case, not a separate reading decision.

[00:03:50] Speaker 04:
But all of that, and she'd be fine, as I understand the veteran's law, she'd be fine if you're right that the initial claim included IBS, either explicitly or implicitly.

[00:04:06] Speaker 04:
But if the initial claim did not include IBS, and IBS came into the case only when she came back with her second motion for reconsideration and said, I want to raise IBS, and they decided to treat that separately.

[00:04:23] Speaker 04:
If that is a separate claim at that point, then you're out of luck, right?

[00:04:30] Speaker 00:
If we're speaking on hypothetical terms, I would say

[00:04:34] Speaker 00:
if it were indeed a separate claim.

[00:04:36] Speaker 00:
So if the initial claim is for hearing loss, and then she later said, add IBS, I don't think we'd be here.

[00:04:43] Speaker 00:
I think that would be clear that those are two separate claims.

[00:04:45] Speaker 04:
OK.

[00:04:46] Speaker 04:
But doesn't that present us with the basic factual dispute that we're struggling to try to reconcile here, whether or not IBS is in fact

[00:04:57] Speaker 04:
closely enough related to stomach problems to be encompassed within the original claim.

[00:05:04] Speaker 04:
And I don't see that the board or the VA or the court for that matter have answered that question conclusively.

[00:05:12] Speaker 04:
And if that's true, how can we decide this case?

[00:05:16] Speaker 04:
Because we're presented with the

[00:05:18] Speaker 04:
dual choices of either saying, yes, of course, if it was part of the original claim, then she's right.

[00:05:25] Speaker 04:
She shouldn't have been treated as having raised a new claim when she first mentions IBS.

[00:05:31] Speaker 04:
But if it is separate, if they would regard this as separate as a factual matter, doesn't that mean they got everything right?

[00:05:38] Speaker 03:
And isn't there a further problem which is whether they got it right or not, it's a factual issue which we can't hear on appeal?

[00:05:47] Speaker 00:
If the issue before this court was the scope of the claim, then we have a factual issue.

[00:05:52] Speaker 00:
But as we explained in our brief, both the board and the Veterans Court made at least the implicit conclusion that the IDF was included within the scope.

[00:06:02] Speaker 00:
At pages 22 and 23 of the appendix is the language from the Board of Veterans' Appeals, specifically noting that the case law requires it to look at all gastrointestinal diagnoses to determine the scope of the stomach problems claim, and noting that there was, in addition to the diagnosis of gastroesophageal reflux disease, the irritable bowel syndrome.

[00:06:30] Speaker 04:
And there's only one reasonable way to read that, which is that they acknowledge that the scope of the claim included these two diagnoses, but they refuse to... Well, the scope of the overall claim, but I don't read this as saying that the scope of the initial claim included IBS.

[00:06:47] Speaker 04:
If I read this, they're saying, well, without maybe completely resolving this question, which leaves us up in the air, it's saying that

[00:06:56] Speaker 04:
There was a diagnosis of IBS that there was in January 2010.

[00:06:59] Speaker 04:
There's a specific diagnosis of IBS.

[00:07:02] Speaker 04:
But she raises IBS in 2008.

[00:07:05] Speaker 04:
So IBS is definitely in the case.

[00:07:08] Speaker 04:
But the question, the critical question is, isn't it, that whether or not IBS was in the case from the word go?

[00:07:14] Speaker 04:
And I don't see them answering that question.

[00:07:18] Speaker 00:
Well, if they didn't specifically answer it here, and our position is they did, the only reason why they refused to adjudicate IBS is because of this separately issued rating decision.

[00:07:28] Speaker 00:
We think the court, the Veterans Court, specifically answered the question

[00:07:32] Speaker 00:
when it cited Ty Ruth for the proposition that the VA has discretion to bifurcate a claim.

[00:07:39] Speaker 00:
It has to have been one claim in order to have been bifurcated.

[00:07:43] Speaker 00:
And if this court still isn't satisfied that this finding has been made or that there is a factual dispute or a factual question outstanding, then you should remand and not dismiss for lack of jurisdiction.

[00:07:56] Speaker 00:
Because the only reason why there would be this outstanding factual question is because neither the board

[00:08:01] Speaker 00:
nor the Veterans Court directly addressed it and made this preliminary finding.

[00:08:06] Speaker 00:
And as the court has done before, as we mentioned in Chico, or Checo if I'm pronouncing it correctly, the court has remanded to the Veterans Court when the Veterans Court has failed to make the findings and to apply the proper legal standard.

[00:08:23] Speaker 00:
So this court could go on to determine that if in fact the initial claim did include IBS, then the court wrongly applied

[00:08:31] Speaker 00:
or wrongly interpreted 7105 and apply Tyrus to require Ms.

[00:08:36] Speaker 00:
Deer to file a second notice of disagreement.

[00:08:38] Speaker 02:
Your argument is we could find at least that the Veterans Court impliedly found that the first claim included it.

[00:08:44] Speaker 02:
And I don't actually see anything in the red brief arguing that it didn't.

[00:08:47] Speaker 02:
They seem to simply be saying because they treated it as a separate claim, you had to file a different NOD.

[00:08:54] Speaker 00:
And the red brief would be the government's claim?

[00:08:57] Speaker 00:
Yes.

[00:08:57] Speaker 00:
Right.

[00:08:57] Speaker 00:
The government takes the position that

[00:09:01] Speaker 00:
that even if the initial scope of the claim included IBS, it was still on Ms.

[00:09:07] Speaker 00:
Stewart to file a second notice of disagreement.

[00:09:12] Speaker 00:
The cases that the government cites to support the proposition that there are some cases where you need to file a second NOD all have to do with what we call downstream issues.

[00:09:24] Speaker 00:
The case law, I think, is clear.

[00:09:26] Speaker 00:
that a veteran would never have to file a second notice of disagreement to a second rating decision denying the same claim that's currently on appeal.

[00:09:38] Speaker 00:
And I think we addressed in our reply brief how this situation is distinguishable from those cases that the government relies on.

[00:09:50] Speaker 04:
I take it there really isn't anything inherently wrong with bifurcation at the board level, let's say, in which if the board says, well, you know, there are quite different considerations with respect to these multiple claims that are before us and therefore we're going to treat them separately as long as the veteran isn't prejudiced by either being required to file another nod with respect to claims that have already been raised and to which there has already been a nod.

[00:10:17] Speaker 04:
which is the way you see this case, or that it doesn't result in a change in the timing of the date from which the benefits will flow.

[00:10:30] Speaker 04:
Those are the two, but there's nothing inherently wrong with saying, well, we're going to treat these as separate, but we'll keep the original start date for all the claims as the same.

[00:10:42] Speaker 04:
And we won't require any more nods.

[00:10:45] Speaker 04:
That would solve the problem of bifurcation, right?

[00:10:47] Speaker 00:
Exactly.

[00:10:48] Speaker 00:
I mean, bifurcation could be a useful administrative tool in some situations.

[00:10:52] Speaker 00:
But bifurcation cannot be used as a way to devoid a properly and timely file of notice of disagreement

[00:10:59] Speaker 00:
of its validity under the statute, and it can't be used as a trap for the unwary.

[00:11:07] Speaker 04:
So that brings us once again back to the question of whether the original nod, in I guess 2008, encompassed IBS.

[00:11:16] Speaker 04:
Right.

[00:11:16] Speaker 04:
And that is a legal question that this court has... Whether that nod encompassed IBS, that depends on the factual question of whether IBS is

[00:11:26] Speaker 04:
was alluded to at least implicitly and whether it's close enough to be deemed implicit within stomach problems, right?

[00:11:34] Speaker 00:
No.

[00:11:34] Speaker 00:
There's a difference between determining the scope of the claim and the scope of a notice of disagreement.

[00:11:41] Speaker 00:
This court's case law says that the scope of the claim is a factual determination.

[00:11:45] Speaker 00:
But this court has and will exercise jurisdiction over questions of the scope of the Notice of Disagreement under 7105.

[00:11:52] Speaker 03:
But the scope of the Notice of Disagreement is not the issue.

[00:11:56] Speaker 03:
The issue is what was in the original claim.

[00:12:00] Speaker 00:
I respectfully disagree.

[00:12:02] Speaker 00:
It's our position that the factual determination of what was in the original claim has been resolved in our favor.

[00:12:09] Speaker 00:
by the board and the Veterans Court, at least impliedly.

[00:12:14] Speaker 02:
Is it your view that the later diagnosis with respect to IBS should have been treated simply as new and material evidence relating to the earlier claim?

[00:12:26] Speaker 00:
No, it's our position that, speaking of the 2010 VA examination, that that was evidence that was developed in the processing of the appeal of the stomach problems claim, which the VA continued to process correctly by issuing the statement of the case.

[00:12:43] Speaker 00:
and allowing the steward to perfect your appeal by filing Form 9.

[00:12:48] Speaker 00:
So it's only evidence that was developed by the VA pursuant to the duty to assist in the processing of the appeal of the general claim for stomach problems, which encompassed IBS.

[00:12:58] Speaker 00:
according to our reading of the board decision and the court decision.

[00:13:02] Speaker 04:
You don't want the 2010 to be treated as new and material evidence because that wouldn't allow you to get benefits all the way back to 2005 claim, right?

[00:13:11] Speaker 00:
Well that's one reason and the other reason is new and material evidence is only a consideration when there's a final decision.

[00:13:17] Speaker 00:
And here there wasn't a final decision because Ms.

[00:13:19] Speaker 00:
Stewart filed a notice of appeal

[00:13:22] Speaker 00:
within the year of the October 2007 raining decision denying service connection for stomach problems.

[00:13:29] Speaker 00:
Okay, let's save the rest of your time for rebuttal.

[00:13:31] Speaker 00:
Okay, thank you.

[00:13:41] Speaker 01:
Good morning, Your Honor.

[00:13:42] Speaker 01:
May it please the court?

[00:13:43] Speaker 01:
I apologize for my voice.

[00:13:44] Speaker 01:
I'm getting over a cold.

[00:13:47] Speaker 01:
As we have explained, the court does not possess jurisdiction to decide this appeal because there was an affirmative determination that Ms.

[00:13:54] Speaker 01:
Stewart's March 2008 notice of disagreement did not encompass the IBS claim.

[00:13:59] Speaker 01:
The portions of the record... Isn't it correct?

[00:14:03] Speaker 02:
Your counsel on the other side argues that while the question of the scope of the claim

[00:14:10] Speaker 02:
It might be a factual question.

[00:14:12] Speaker 02:
The scope of a notice of a disagreement, that that question is a legal question.

[00:14:16] Speaker 02:
The court has repeatedly said that, hasn't it?

[00:14:19] Speaker 01:
we are we believe that they know that the government disagreement involved a factual question to what was actually committed with her claim and here we strongly disagree both in our brief that the board made a factual determination that the uh... i'd be a claim was adjudicated as part of the initial two thousand five plane when you know you never actually argue because i thought that the town you don't actually are given the reference and that that

[00:14:46] Speaker 02:
her initial claim wouldn't encompass IBS.

[00:14:51] Speaker 01:
We acknowledge in our brief that the board made a somewhat confusing statement on pages 22 and 23, but here the board or the VA specifically concluded

[00:15:02] Speaker 01:
on page 81 of the record that she, well first of all she, on page 81 she specifically asked to add IVS to her claim and the VA consistently treated it after that as a new claim.

[00:15:15] Speaker 01:
It's something that was not, it treated the initial claim for stomach problems and gastroesophageal issues or GERD as a separate issue from IVS.

[00:15:24] Speaker 02:
You're not arguing that the original claim didn't encompass IVS.

[00:15:29] Speaker 02:
What you're arguing is that once

[00:15:32] Speaker 02:
that they decided to treat that essentially be one of the underlying questions in the original claim as a separate claim that therefore removed it from the original claim.

[00:15:47] Speaker 01:
Is that right?

[00:15:47] Speaker 01:
No, Your Honor.

[00:15:48] Speaker 01:
Neither the VA nor Ms.

[00:15:50] Speaker 01:
Stewart understood that the original claim encompassed IVF.

[00:15:54] Speaker 02:
What about the medical records all the way back that talked about her symptoms and that even referred to IVF?

[00:15:59] Speaker 01:
Well, Your Honor, what she's talking about are the March 2007 medical records, which are contained at 77 and 79.

[00:16:05] Speaker 01:
And as Ms.

[00:16:06] Speaker 01:
Stewart concedes in her reply brief, that does not reflect the diagnosis of IBS.

[00:16:10] Speaker 01:
On page 77, it says nervous stomach, and on page 79, it says IBS question mark.

[00:16:15] Speaker 01:
There was no diagnosis of IBS until 2010.

[00:16:19] Speaker 01:
And so clearly, the VA did not consider it as part of the 2005 claim, and then again, on reconsideration in 2006.

[00:16:28] Speaker 01:
Despite the fact that all the symptoms that were listed related to IBS instead of just general GERD?

[00:16:35] Speaker 01:
Well, Your Honor, the only thing we've been specifically pointed to in the record is the March 2007 medical records, which would just say nervous stomach and IBS question mark.

[00:16:45] Speaker 02:
But it didn't just say those two things.

[00:16:46] Speaker 02:
It had a whole list of symptoms.

[00:16:48] Speaker 02:
led to the IVF question mark.

[00:16:56] Speaker 01:
Your Honor, that was not presented or encompassed in the decision.

[00:17:00] Speaker 01:
The decision where the board specifically adjudicates it is on pages 74 is where the board

[00:17:10] Speaker 01:
specifically addresses it, or the RO specifically addressed it in the record.

[00:17:15] Speaker 01:
It says service medical records are negative, showing treatment or diagnosis of acid reflux in service.

[00:17:22] Speaker 01:
VA medical records, dated March 2007, show a diagnosis of gastroesophageal reflux disease, but we have no link to relate to service.

[00:17:30] Speaker 01:
And then ultimately,

[00:17:33] Speaker 01:
And then that was what she filed the notice of disagreement to.

[00:17:36] Speaker 01:
So it doesn't discuss in any way IBS.

[00:17:39] Speaker 01:
And I don't think that there was no discussion of that symptomatology.

[00:17:43] Speaker 01:
And again, when she finally brought it to the board's attention in July of 2008, she asked that it be added.

[00:17:50] Speaker 01:
As is reflected on page 99 of the record, the VA processed it as a new claim.

[00:17:55] Speaker 01:
They didn't understand that to a previously best.

[00:17:57] Speaker 02:
She didn't file a new claim.

[00:17:58] Speaker 02:
She didn't ask that it be treated as a new claim.

[00:18:00] Speaker 01:
She asked it to be added, and as is expanded to the original claim.

[00:18:07] Speaker 01:
Right, added to the original claim.

[00:18:09] Speaker 01:
The VA said on page 99 of the Joint Appendix, IBS taken as a new condition, not part of GERD with stomach problems.

[00:18:16] Speaker 01:
And that was consistently how it was treated.

[00:18:19] Speaker 01:
All the additional regional office decisions specifically treat IBS, and then they say GERD with stomach problems.

[00:18:26] Speaker 03:
But let me be sure you're responding to Ms.

[00:18:32] Speaker 03:
Odom's position.

[00:18:34] Speaker 03:
Ms.

[00:18:34] Speaker 03:
Odom's position, if I understood it correctly, is that the specific concept of IBS was included in the original claim of stomach problems and that

[00:18:53] Speaker 03:
whatever bifurcation occurred later on, could only be a bifurcation of something that had to be in the original claim, which included, in her view, the IBS symptomology and therefore the IBS claim.

[00:19:10] Speaker 03:
And it was your job, the VA job, to have sorted all that out and not left it to Ms.

[00:19:19] Speaker 03:
Stewart to sort out.

[00:19:21] Speaker 03:
Do I understand the VA is saying, no, no, no, IBS was never a part of that original stomach problems claim.

[00:19:33] Speaker 03:
IBS didn't show up until, what, 2010, whatever the later date is that you're arguing over the later NOD requirement.

[00:19:45] Speaker 01:
Yes, Your Honor.

[00:19:47] Speaker 01:
I believe that IBS has always been treated separately from the VA and has always interpreted it as a new claim.

[00:19:53] Speaker 01:
I also want to take issue with the language regarding bifurcation.

[00:19:57] Speaker 01:
I don't think here the VA bifurcated its claim.

[00:20:00] Speaker 01:
It understood there to be different symptomology presented with the IBS claim that was not presented earlier and so it educated it separately.

[00:20:09] Speaker 02:
diagnosis in order to be encompassed within a claim.

[00:20:13] Speaker 02:
In other words, if I come to the VA and say I have severe headache, I don't have to say that I've got a brain tumor as opposed to something else to have that encompassed within my claim for severe headaches, right?

[00:20:28] Speaker 01:
Yes, Your Honor.

[00:20:29] Speaker 01:
However, I think there's a mistake in using

[00:20:32] Speaker 01:
the principle, such as in Clement, saying that the veteran is not required to self-diagnose to excuse them from the procedural requirement of filing a notice of disagreement with an adjudicated claim.

[00:20:47] Speaker 01:
Here, I think it's telling that Ms.

[00:20:49] Speaker 01:
Stewart does not present any excuse for why she did not file a notice of disagreement.

[00:20:55] Speaker 01:
The veteran was not expected to self-diagnose as in Clemens.

[00:20:58] Speaker 01:
Here the claims were adjudicated as they were presented to the VA.

[00:21:02] Speaker 01:
She was given clear notice that she had to file a notice of disagreement, and she didn't do that.

[00:21:09] Speaker 04:
Let me ask you this.

[00:21:12] Speaker 04:
If she did file, in July of 2008, her request to add IBS, which the VA treated as a new claim, in effect.

[00:21:22] Speaker 04:
And it was denied.

[00:21:25] Speaker 04:
Had she filed an NOD with respect to that claim and then won, would her benefits go all the way back to the 2005 or would it only go back to 2008?

[00:21:38] Speaker 01:
Your Honor, pursuant to the statute, her benefits would only go back to 2008 unless she had some claim that she had an informal, there could be an argument that she had an informal claim.

[00:21:47] Speaker 04:
So everything keeps coming back to the question of whether IBS was really part of that original claim.

[00:21:54] Speaker 04:
Because if it was,

[00:21:55] Speaker 04:
then she's entitled to, if she wins, she's entitled to benefits all the way back to September of 2005.

[00:22:03] Speaker 04:
And the fact that the VA has elected to treat it as a separate claim when she asks to have it added can only be defensible if it wasn't part of that original claim, right?

[00:22:19] Speaker 04:
Well, Your Honor, I think it's also a question of whether... Well, let's make sure that we're on the same page.

[00:22:23] Speaker 04:
Is that in our writing and supposing that set of circumstances?

[00:22:29] Speaker 01:
Well, Your Honor, I don't think that the original decision could be said to implicitly deny the IBS claim, since it wasn't specifically adjudicated.

[00:22:38] Speaker 01:
I understand the court's problem with the fact that her benefits would go back to 2008 versus 2005.

[00:22:42] Speaker 04:
Well, but implicit denials don't involve explicit adjudications.

[00:22:47] Speaker 04:
That's their nature.

[00:22:49] Speaker 04:
So don't we need to know?

[00:22:52] Speaker 04:
I mean, I'm wondering why we don't remand this case, because it seems to me we need to know what was in that original claim.

[00:23:01] Speaker 04:
And that sounds like a very factual question, that we're not in a particularly good position to decide, unless it's already been decided.

[00:23:10] Speaker 04:
Now, your opposing counsel thinks it's been decided.

[00:23:14] Speaker 04:
But if it hasn't been decided,

[00:23:16] Speaker 04:
then isn't that something that we need to send back?

[00:23:20] Speaker 01:
Well, Your Honor, we do not think that, I think it's been clear that they did not think that it was initially adjudicated or initially part of the claim and that was why it was appropriate when you arrived.

[00:23:32] Speaker 02:
I mean, what she said is reopen my claim.

[00:23:35] Speaker 02:
She didn't say file a new claim.

[00:23:38] Speaker 02:
So she was obviously confused because she didn't realize her claim was still pending.

[00:23:41] Speaker 02:
Well, she also said add.

[00:23:42] Speaker 01:
It says reopen and add.

[00:23:45] Speaker 01:
And then the VA interpreted that as a claim that had not been presented.

[00:23:48] Speaker 02:
But it seems like we're doing a Dasha thing.

[00:23:50] Speaker 02:
You've got a prostate claimant who's got stomach problems that all the symptoms, if you read them,

[00:23:57] Speaker 02:
lead you to conclude that we're talking about something more like IVS than GERD.

[00:24:02] Speaker 02:
And then she comes back and says, I want to make sure IVS is part of my claim, so reopen it or whatever you have to do to make sure it's in there.

[00:24:12] Speaker 02:
And then the VA decides it's going to go down a whole different road.

[00:24:18] Speaker 02:
I thought the whole point was that the VA has an obligation to assist claimants in the development of these claims.

[00:24:24] Speaker 01:
I think we're reading a lot about her subsequent diagnosis after the fact.

[00:24:28] Speaker 01:
What was before the board in 2006-2007 was not a definitive diagnosis of IBS.

[00:24:36] Speaker 01:
It was at best a question.

[00:24:37] Speaker 01:
That's definitely been conceded in the briefs.

[00:24:42] Speaker 01:
An effort to treat the veteran as fairly as possible based on what the veteran thought she had asked the VA to decide and what the VA thought they had asked her to decide.

[00:24:51] Speaker 01:
And here she was given clear notice that there's no gotcha.

[00:24:54] Speaker 01:
She was given a notice of disagreement, page 115 of the joint.

[00:24:58] Speaker 01:
She was given a decision.

[00:24:59] Speaker 01:
page 115 of the Joint Appendix says if you disagree you need to do something.

[00:25:04] Speaker 01:
And she didn't do anything.

[00:25:06] Speaker 03:
But Ms.

[00:25:06] Speaker 03:
Speck, let's go back to Judge O'Malley's hypothetical that she raised.

[00:25:13] Speaker 03:
Let's assume we have a patient, a veteran, who goes in and says I have these terrible headaches, severe headaches all the time.

[00:25:23] Speaker 03:
And that's her claim.

[00:25:26] Speaker 03:
And subsequently,

[00:25:29] Speaker 03:
The VA treats it as digestion problems or something else, sinus problems or what have you, but it subsequently turns out she's got a brain tumor.

[00:25:39] Speaker 03:
Now, if the NOD that was filed, they turned her down because of her service connection or whatever.

[00:25:51] Speaker 03:
Subsequently, the question arises, was that brain tumor implicit in the original claim?

[00:26:00] Speaker 03:
Does the VA accept responsibility for having pursued that issue without the veteran having identified that particular possibility?

[00:26:12] Speaker 01:
Well, to the extent of a separate set of symptoms, the Ephraim decision says that they're required to file a second notice of disagreement.

[00:26:20] Speaker 01:
There, you had the veteran had originally, I believe, applied for a different mental condition and was subsequently diagnosed with PTSD, and the court held that it was appropriate to have two notices of disagreement in that circumstance.

[00:26:35] Speaker 01:
If it's separate.

[00:26:36] Speaker 04:
and different enough to be deemed a separate claim.

[00:26:40] Speaker 04:
But if it's not deemed to be different enough, and Judge O'Malley's hypothetical assumes that they aren't different enough to be deemed a separate claim, then there's no separate nod required.

[00:26:54] Speaker 01:
Well, Your Honor, this again lets the veteran retroactively say her notice of disagreement said something that it didn't in fact say.

[00:27:01] Speaker 04:
I mean, here we do have... It's not the notice of disagreement, right?

[00:27:04] Speaker 04:
The notice of disagreement says basically, I disagree with everything you just said in denying my whole claim.

[00:27:10] Speaker 04:
The real question is what was in the whole claim?

[00:27:13] Speaker 04:
Does the whole claim encompass, in this case, IBS?

[00:27:17] Speaker 04:
And if the answer to that is no, it did not, then you're right.

[00:27:23] Speaker 04:
The first time she mentions IBS is when she makes this request in 2008.

[00:27:27] Speaker 04:
If it's included, then I don't see how you can be right.

[00:27:34] Speaker 04:
It doesn't have to follow second nod if it was included in the first claim.

[00:27:38] Speaker 04:
I mean, that's pretty clear in general as well, as I understand it.

[00:27:41] Speaker 01:
Well, Your Honor, I don't think it was decided in the first claim, and I don't think it was presented to the board or the VA in the first claim.

[00:27:49] Speaker 04:
That's what you think, and your opposing counsel disagrees, but I don't see the board or the court having made any kind of hard and clear ruling on that question.

[00:28:01] Speaker 01:
Well, I think the board's decision treats them always as separate conditions.

[00:28:06] Speaker 01:
I believe, I don't think that 22 and 23, again, 23 only talks about gastroesophageal disabilities, which would have been her GERD.

[00:28:14] Speaker 01:
And then it proceeds to talk about the first claim is only including gastroesophageal disorders to include GERD on page 24.

[00:28:23] Speaker 01:
And then it discusses them in terms of GERD on pages 34 and 35.

[00:28:27] Speaker 01:
And the Veterans Court's decision talks about the fact that the original claim was understood only to include GERD.

[00:28:36] Speaker 01:
And that's on page five of the Veterans Court's decision.

[00:28:39] Speaker 01:
So I think the court is clear that it only understood GERD with stomach problems to have been part of what she submitted originally.

[00:28:48] Speaker 03:
In an ordinary course of civil litigation, your position would be quite sound because it's clear that she, Ms.

[00:29:03] Speaker 03:
Stewart, did not make very clear what her problem was and what she needed.

[00:29:09] Speaker 03:
But the VA context is dramatically different.

[00:29:13] Speaker 03:
And this is a problem we hear these cases with some regularity in which the VA forgets what its role is, which is to help the veteran.

[00:29:24] Speaker 03:
I see no evidence in this case anywhere up the line that the VA went out of its way to help the veteran figure out exactly what the veteran's problem was.

[00:29:36] Speaker 03:
And we see these cases and I don't know how we communicate that problem back to whoever needs to hear it.

[00:29:46] Speaker 02:
Okay.

[00:29:48] Speaker 02:
Thank you.

[00:29:56] Speaker 02:
I think the most important thing to focus on right now is where do you believe in the Veterans Court decision or otherwise that the factual finding has been made in Ms.

[00:30:08] Speaker 02:
Stewart's favor that the original claim encompassed?

[00:30:14] Speaker 00:
That would be on page five.

[00:30:17] Speaker 00:
Last paragraph, one, two, three, four, five.

[00:30:22] Speaker 00:
lines down and, quote, VA was permitted to adjudicate the matter of service connection for IBS separately from the appellant's original stomach problems claim.

[00:30:34] Speaker 00:
See Tyreuse, parentheses, VA might bifurcate a claim and adjudicate it in separate pieces.

[00:30:41] Speaker 00:
That's the Veterans Court relying on Tyreuse to say that

[00:30:46] Speaker 00:
Ms.

[00:30:47] Speaker 00:
Stewart was required to file a second notice of disagreement because VA bifurcated the claim for some problems.

[00:30:56] Speaker 00:
Not as explicitly as I would have liked it, but there's only one reasonable reading of that statement.

[00:31:05] Speaker 00:
In addition, I'd like to point out that I disagree with opposing counsel that page

[00:31:12] Speaker 00:
23 of the appendix, the board's decision that only talks about GERD.

[00:31:20] Speaker 00:
It specifically says, in this case, the record also reflects a diagnosis of GERD and IBS.

[00:31:28] Speaker 00:
Without making any additional statements, it moves right to, well, she submitted a specific claim and didn't appeal the RO's 2008 decision.

[00:31:42] Speaker 00:
That's the only reason why the board refused to adjudicate IBS.

[00:31:46] Speaker 03:
She was without counsel during this part of the proceedings, wasn't she?

[00:31:51] Speaker 00:
That's right.

[00:31:51] Speaker 00:
She was with a veteran service organization.

[00:31:53] Speaker 00:
This court made clear in Comer v. Speak that a veteran service organization is not the same as representation.

[00:31:59] Speaker 00:
by counsel.

[00:32:00] Speaker 00:
She was the very layman that this system and this court case law specifically is designed to protect.

[00:32:06] Speaker 00:
To the extent that the government relies on a truncated version of the 2008 statement, which is add IDS, and ignores the rest of it, which is, as Judge O'Malley pointed out, was reopen my claim, which was already on appeal, and add IDS.

[00:32:22] Speaker 00:
The government has chosen to

[00:32:27] Speaker 00:
construe that statement in the light most unfavorable to Ms.

[00:32:31] Speaker 00:
Stewart to deprive her of a right to board review of the decision and, as Judge Bryson has pointed out, to a later effective date of benefits if she does get granted, which on this record she most certainly should be granted, should have been granted as early as 20 times.

[00:32:46] Speaker 04:
Just one more question if I could.

[00:32:49] Speaker 04:
The court there is referring to a February 2009 rating decision, which is the rating decision, as I understand it, that was on her July 2008 request to have IBS added.

[00:33:11] Speaker 04:
putting the two decisions together, I take it, at that point.

[00:33:15] Speaker 04:
Are they not the decision on her original claim, which did not at least explicitly include IBS, and the later decision, which did include IBS?

[00:33:25] Speaker 04:
But I'm not sure that given that way that the court is characterizing the two, that that tells us that the court must necessarily then have been

[00:33:34] Speaker 04:
saying that the original claim included by implication, IBS.

[00:33:39] Speaker 04:
That's my problem with that, with reference to the court's opinion.

[00:33:43] Speaker 00:
I'm a little out of time.

[00:33:48] Speaker 04:
Do you understand my concern with the reference to the February 2009 decision?

[00:33:53] Speaker 00:
Yeah, but all the Veterans Court is saying there is that they issued a separate rating decision and Ms.

[00:33:59] Speaker 00:
Stewart was required to file a notice of disagreement to that decision.

[00:34:03] Speaker 00:
If we all agree that everybody agrees that the original claim included IBS, that second rating decision has no legal effect.

[00:34:12] Speaker 00:
It doesn't mean anything.

[00:34:14] Speaker 00:
Didn't restart the 7105 process for her to file a notice of disagreement.

[00:34:21] Speaker 00:
As we pointed out in our reply brief, we agree with the government that it's

[00:34:25] Speaker 00:
It was superfluous.

[00:34:26] Speaker 00:
There was no reason for it.

[00:34:27] Speaker 00:
The only thing that had any legal validity at that point was the statement of the case, which they issued on stomach problems, and then her Form 9.

[00:34:38] Speaker 00:
And when she filed that Form 9, she was entitled to a board decision on IBS.

[00:34:42] Speaker 00:
And that's where we went wrong.

[00:34:45] Speaker 00:
Well, if there are any further questions, thank you very much for your time.

[00:34:48] Speaker 00:
Thank you.

[00:34:49] Speaker 02:
The case will be submitted.