[00:00:00] Speaker 03: Today is 2-0-1-4-7-1-3-4. [00:00:02] Speaker 03: Susick versus McDonald. [00:00:07] Speaker 03: Tell me how to say your point. [00:00:10] Speaker 03: Susick. [00:00:10] Speaker 03: Susick versus McDonald. [00:00:13] Speaker 03: Mr. Carpenter, you may proceed. [00:00:15] Speaker 02: Thank you, ma'am. [00:00:15] Speaker 02: Can you please support Kenneth Carpenter appearing on behalf of Mr. Jack Susick? [00:00:20] Speaker 02: In this case, Your Honor, the Veterans Court determined that the VA could lawfully ignore the Board's 1995 referral [00:00:29] Speaker 02: of Mr. Susick's claim for reopening of his previously denied claim of service connection for post-traumatic stress disorder. [00:00:38] Speaker 02: Under the correct interpretation of the provisions of 19.9 and 1995, the Board could not have lawfully overlooked the Board's referral of Mr. Susick's request to reopen his claim for post-traumatic stress disorder. [00:00:53] Speaker 02: This question was decided by the Veterans Court in Godfrey v. Brown in the same year that the Board made its referral. [00:01:00] Speaker 02: In Godfrey, the Board determined that the issue of service connection for residuals of a right ankle fracture had, in fact, been raised by the Veteran and that the Board properly referred the matter to... Mr. Carpenter, so assuming that the regional office had [00:01:16] Speaker 00: undertaking the review that you say they should have. [00:01:19] Speaker 00: What evidence was there that they were supposed to consider? [00:01:22] Speaker 00: Was there anything new that had been submitted or had been not reviewed subsequent to December 92? [00:01:31] Speaker 02: Yes. [00:01:31] Speaker 02: In March of 1993, the veteran informed or submitted a statement in support of claim. [00:01:39] Speaker 02: It's in the record at JA 16 to 17. [00:01:42] Speaker 02: informing the VA that he had been treated for a nervous condition and in his submission he indicated that he had been hospitalized for that condition at the VA Medical Center in Columbia, Missouri. [00:01:53] Speaker 00: So he had been hospitalized for alcohol and some drug abuse. [00:02:00] Speaker 00: But I don't see that there was a discussion as to any psychiatric disorder or any mention of the [00:02:07] Speaker 00: No, Your Honor. [00:02:09] Speaker 02: And in fact, if the VA had acted as it was required to act by law, this matter could have been terminated by that determination and a denial of the request for reopening because that medical record that he referred to was in fact not at that time new and material evidence. [00:02:26] Speaker 02: However, in this case, the issue was whether or not the board had made a lawful referral, an order directing the VA to take action. [00:02:35] Speaker 02: And the VA took no action. [00:02:37] Speaker 01: And it is that failure to take action that... Well, a remand is certainly an order to take action. [00:02:42] Speaker 01: Is a referral an order to take action or simply... Under the Veterans Court decision in Godfrey, it is. [00:02:49] Speaker 02: And then under the VA's later amendment to the same regulation in 2011, a referral has the same effect as a remand. [00:02:58] Speaker 02: But the significance is, in this case, in the same year that this referral was made, the VA or the Veterans Court decided in Godfrey that very question. [00:03:08] Speaker 02: And it was in fact, Your Honor, based upon the VA's practice that they treated referrals by the board in the same manner that they treated remands. [00:03:17] Speaker 02: And as a consequence, the VA was under a procedural obligation to take action. [00:03:25] Speaker 02: No action was taken in this case. [00:03:27] Speaker 02: That constitutes the procedural error that arose under the Veterans Court decision in Myers. [00:03:35] Speaker 02: which was the entire basis of Mr. Susick's appeal to the Veterans Court in this matter, because he took a direct appeal of the effective date. [00:03:44] Speaker 01: Doesn't the 2011 reg treat remands and referrals differently? [00:03:51] Speaker 02: They do treat them differently. [00:03:52] Speaker 01: And how can you say it's the same thing? [00:03:55] Speaker 02: Because it has the same procedural effect. [00:03:57] Speaker 02: It requires action to be taken upon the referral. [00:04:01] Speaker 02: In other words, this would be a totally useless regulation if the provisions of 19.9 were read. [00:04:10] Speaker 01: Under the new reg, what action does the board have to take? [00:04:14] Speaker 01: I'm sorry, what action does the VA have to take upon receipt of the referral? [00:04:19] Speaker 02: Well, I'm not sure it specifies what action. [00:04:22] Speaker 02: The language of the referral in 1995 was to take appropriate action. [00:04:28] Speaker 02: Our argument is that taking no action [00:04:31] Speaker 02: is not taking appropriate action. [00:04:35] Speaker 01: Is no action always inappropriate? [00:04:39] Speaker 02: Yes, Your Honor. [00:04:39] Speaker 02: Because as Judge Raina pointed out, in fact, there was a statement in support of Plain that referred to a specific period of hospitalization that had they taken action on that, could have easily been disposed of. [00:04:51] Speaker 00: How do we know that that would have been disposed of? [00:04:55] Speaker 00: Are you saying that when you say, take appropriate action, that that includes issuing a detailed report as to the action you took? [00:05:03] Speaker 00: Or maybe they did look at it and say, there's nothing here, let's move on. [00:05:08] Speaker 02: No, Your Honor, when a veteran makes a claim and we assert that the saving and support of claim for March 1993 was a claim to reopen and the requirement [00:05:22] Speaker 02: by statute is to make a decision on that request. [00:05:27] Speaker 00: And the disposition of that... We know that that's true for a remand. [00:05:30] Speaker 02: We're dealing with a referral... It's independent of a remand. [00:05:36] Speaker 02: The March 1993 imposed an affirmative duty on the VA based upon the statement and supportive claim for the VA to take action, regardless of what the Board did in 1995. [00:05:47] Speaker 02: But in this case, the board in 1995 recognized that the VA had taken no action and specifically referred the matter back to the VA to take appropriate action. [00:05:59] Speaker 02: And that express direction by the board in 1995 was simply ignored. [00:06:04] Speaker 02: That was a procedural error. [00:06:06] Speaker 00: And a procedural error... Why was it a procedural error? [00:06:09] Speaker 00: You say they ignored it. [00:06:10] Speaker 00: Are you saying that they should have treated the referral as a remand, as we understand it now, [00:06:16] Speaker 00: And there should have been a final decision issued on that claim. [00:06:20] Speaker 02: Yes, sir. [00:06:21] Speaker 02: And had that been done, Mr. Susick would have been given his notice of appellate rights. [00:06:26] Speaker 02: If he didn't appeal within one year, then that decision would have been final. [00:06:30] Speaker 02: And we would not be here today because there would be no basis for implicating the provisions of the Meyer decision below. [00:06:39] Speaker 02: The Meijer decision is predicated on the notion that if the VA... Your argument takes us to a real slippery slope, doesn't it? [00:06:45] Speaker 00: If we were to find in your favor, which would be on a novel issue that you presented to us, wouldn't we open up for, let's say, a multitude of veterans to say, I never got a final decision, mine involved a referral too, I need to go back to court? [00:07:09] Speaker 02: No, Your Honor, because this case arises in very specific circumstances in which the board in 1995 recognized the existence of this pending matter and directed the VA to take action. [00:07:23] Speaker 02: This is not a matter of veterans of the Suis Ponte saying, I never got notice or... What action did they direct them to take? [00:07:33] Speaker 02: Appropriate action, Your Honor. [00:07:35] Speaker 02: And they took no action. [00:07:37] Speaker 01: And I assert that in this... You assert that no action can never be appropriate. [00:07:45] Speaker 02: Not in the context of a referral, Your Honor. [00:07:48] Speaker 02: A referral requires some affirmative action in this case... Mr. Carpenter, would it also help your argument that at the end of this very same opinion, [00:07:59] Speaker 03: The board informed the veteran that no action is required of the veteran or his representative until they receive further notice. [00:08:05] Speaker 03: Yes. [00:08:05] Speaker 03: Doesn't that support the idea that no action is really not okay in this scenario? [00:08:10] Speaker 02: Yes, because the board specifically informed the veteran and his representative that they need do nothing until the board acted. [00:08:18] Speaker 03: I have one question for you. [00:08:19] Speaker 03: You characterize this as you believe that the board was recognizing a claim to reopen. [00:08:30] Speaker 03: I don't know if you should sublimit your argument. [00:08:35] Speaker 03: Why couldn't this alternatively be looked at as an informal claim? [00:08:40] Speaker 03: I mean, our jurisprudence and the evolution of jurisprudence on informal claiming seems to include something written on the back of a cocktail napkin and handed to the VA. [00:08:48] Speaker 03: So why wouldn't the recognition of [00:08:52] Speaker 03: these contentions in this war proceeding be a new informal claim? [00:08:57] Speaker 02: If there hadn't been the action that was taken in December of 1992, I believe that would be a correct assertion. [00:09:04] Speaker 02: Since there was a specific claim made and action taken in December of 1992, then that's a previously denied claim, which I believe moves it into [00:09:14] Speaker 02: the context of reopening. [00:09:16] Speaker 03: I don't know. [00:09:16] Speaker 03: I don't know that you're right about that. [00:09:18] Speaker 03: Why? [00:09:18] Speaker 03: Well, I'm happy to be wrong, Your Honor. [00:09:20] Speaker 03: Why, Mr. Carpenter? [00:09:21] Speaker 03: Why, just because you file a claim for something and it's finally denied, why does your next attempt to seek compensation for the same injury automatically have to qualify as an attempt to reopen as opposed to a new informal claim? [00:09:35] Speaker 02: Well, perhaps I'm putting more of a label on it that it is necessary [00:09:42] Speaker 02: This was not an informal claim because it was on a VA form. [00:09:48] Speaker 02: It was done on a VA form that is a statement in support of claim. [00:09:52] Speaker 02: It wasn't an informal claim. [00:09:54] Speaker 02: It was a formal claim. [00:09:56] Speaker 03: What was that on the VA form? [00:09:59] Speaker 03: You don't mean the 1992 or the pre-1992 rating? [00:10:03] Speaker 03: No, no. [00:10:06] Speaker 02: In the record, Your Honor, at JA 16, the form used by the veterans [00:10:12] Speaker 02: in March of 1993, VA form 21-4138 is titled, A Statement in Support of Claims. [00:10:22] Speaker 03: And that is the document that... Wouldn't this still be at best an informal claim since the claim is not clearly for PTSD benefits? [00:10:31] Speaker 03: It talks about a nervous condition. [00:10:35] Speaker 03: Let me ask you how I reconcile one thing about your brief, because there's one thing in your brief that I absolutely hated when I read it. [00:10:40] Speaker 03: When you get your brief, look at page 2, footnote 2. [00:10:48] Speaker 03: Isn't that completely inconsistent with what you're telling me right now? [00:10:50] Speaker 03: Which is something I was thinking until my walker pointed out footnote 2 to me, and I'm having trouble reconciling your statement in footnote 2 with what you're arguing now. [00:11:01] Speaker 03: It should be noted the nervous condition with Mr. Susick was being treated for at Columbia, Missouri Medical Center in March of 95 was not post-traumatic stress disorder. [00:11:10] Speaker 03: Why the board characterized Mr. Susick's claim as entitlement to compensation for post-traumatic stress disorder is unclear from the record. [00:11:18] Speaker 03: Isn't that your admission that this form on JA16 you pointed me to, which refers to the medical condition, the nervous condition, aren't you for disavowing [00:11:29] Speaker 03: In your brief, the idea that this nervous condition is a claim for PTSD. [00:11:35] Speaker 02: Well, Your Honor, what I was trying to do in the footnote was to clarify that the board made a characterization of it being a claim for post traumatic stress disorder. [00:11:45] Speaker 02: And it was unclear from the record why the board chose to do that. [00:11:50] Speaker 02: That was the point of the footnote. [00:11:52] Speaker 02: I am acknowledging that the statement in support of claims does not make a specific reference to post-traumatic stress disorder. [00:12:00] Speaker 01: But you also say the nervous condition was not PTSD. [00:12:05] Speaker 01: What was it? [00:12:08] Speaker 02: It was what was described by the veteran and all he offered was a nervous condition. [00:12:16] Speaker 00: So what did your client win here if we agree with you? [00:12:19] Speaker 00: I mean, if you're abandoning [00:12:22] Speaker 00: any type of PTSD dating back to 1993, how are you going to get a service connection going back? [00:12:30] Speaker 02: I'm not abandoning the post-traumatic stress disorder claim. [00:12:34] Speaker 02: What I'm suggesting is simply that there was a lack of clarity in the board's decision for why it chose to do what it did when it made the referral, and it made the referral for a specific condition. [00:12:48] Speaker 02: whereas Mr. Susick's statement in support of claim was for a general condition. [00:12:54] Speaker 02: What does Mr. Susick get? [00:12:57] Speaker 02: He should get an order from this court directing the Veterans Court to address the issue of whether or not this was or was not a procedural error. [00:13:07] Speaker 02: The Veterans Court evaded applying their rule in Myers. [00:13:12] Speaker 00: Let's say that happens, and they say, OK, it's a procedural error. [00:13:16] Speaker 00: We're denying the claim. [00:13:19] Speaker 00: Anything that happened in 93, we're denying the claim there. [00:13:23] Speaker 02: Well, the Veterans Court can't do that. [00:13:26] Speaker 02: All the Veterans Court could do was to say that Myers applied or it didn't apply. [00:13:31] Speaker 02: If they find that it did not apply, then that's a matter [00:13:34] Speaker 02: for another appeal to this court as to whether or not that was or wasn't a procedural error to fail to comply with the referral. [00:14:06] Speaker 04: May I please the court? [00:14:08] Speaker 04: I'd like to start first by going to JA 16 and 17 and discussing that form. [00:14:18] Speaker 04: Now, this is the support for reopening the crime location. [00:14:25] Speaker 04: What's the citation again? [00:14:27] Speaker 04: JA 16 and 17, Your Honor. [00:14:31] Speaker 04: This form, however, is not [00:14:33] Speaker 04: a claim that, and the Board and the Veterans Court in this appeal, looked at this form and said this does not constitute evidence either of a notice of disagreement or new and material evidence in support of reopening claims, partly because there is no reference to PTSD as discussed earlier. [00:14:52] Speaker 04: But in addition, this form is for a non-service-connected pension. [00:14:59] Speaker 04: It's not actually saying I would like service connection for something. [00:15:03] Speaker 04: is asking for pensions. [00:15:05] Speaker 04: And pension is a benefit only allowed for non-service-connected conditions. [00:15:14] Speaker 04: So this form in and of itself and the Board and the Veterans Court below made a factual determination that this could not constitute either a request to reopen for PTSD or a new claim. [00:15:29] Speaker 03: Well, regardless of what they concluded about this form now, in 95 they concluded that, I don't know if it's based on that form or based on something at the hearing. [00:15:41] Speaker 03: We don't know a transcript from the hearing. [00:15:43] Speaker 03: We have some printed statement that supposedly was read in. [00:15:46] Speaker 03: Maybe there were other things stated at the hearing. [00:15:48] Speaker 03: We don't know. [00:15:48] Speaker 03: There's no transcript. [00:15:50] Speaker 03: But all we do know is the board found as a factual matter in 95 [00:15:56] Speaker 03: The veteran has further contended service connection is warranted for post-traumatic stress disorder. [00:16:01] Speaker 03: You're absolutely right. [00:16:01] Speaker 03: We don't know if they found that because of the document at JA 1617. [00:16:06] Speaker 03: Maybe it was because of something said at the hearing. [00:16:09] Speaker 03: We don't know. [00:16:09] Speaker 03: But we do know they made this factual finding. [00:16:12] Speaker 03: And not only did they make the factual finding, they referred it to the VA and told the veteran, you should do nothing until you hear further from the VA about it. [00:16:25] Speaker 04: The board also remanded several issues, and this is a good place to discuss the difference between a referral and a remand. [00:16:35] Speaker 04: When a referral happens under Section 19.9, the board has no jurisdiction. [00:16:39] Speaker 04: It determines it has no jurisdiction, and it cannot direct the regional office to do any particular thing. [00:16:45] Speaker 04: and indeed it does not create additional requirements on it. [00:16:49] Speaker 03: Frequently, for example, refers unadjudicated claims, correct? [00:16:53] Speaker 04: That is the purpose of the referral. [00:16:55] Speaker 04: Absolutely, Your Honor. [00:16:57] Speaker 03: So it's the purpose of the referral, the pro-claimant referral of unadjudicated claims, right? [00:17:02] Speaker 04: Yes, Your Honor. [00:17:02] Speaker 03: That's what you're telling me. [00:17:04] Speaker 03: So this is a referral of an unadjudicated claim. [00:17:08] Speaker 04: A referral does not by itself create a claim. [00:17:12] Speaker 04: there must be an underlying claim made by the claimant. [00:17:14] Speaker 04: The board does not create a claim for the claimant. [00:17:18] Speaker 03: The board is recognizing the presence in this case before it of a claim by the claimant and expressly telling him to do nothing until the VA asks. [00:17:30] Speaker 03: So if normally a referral is most widely used to refer an unjudicated claim, the board is recognizing [00:17:38] Speaker 03: by the veteran here, even though we can't necessarily find them in the tangible record. [00:17:44] Speaker 03: And then they're telling them not to do anything until the VA acts. [00:17:46] Speaker 03: I don't see how that isn't the referral of an unadjudicated claim. [00:17:51] Speaker 03: And then I think we all agree. [00:17:53] Speaker 03: Wouldn't you at least agree if this is the referral of an unadjudicated claim that at that point the RO had to do something? [00:17:59] Speaker 04: If there was in fact a claim, yes, Your Honor. [00:18:01] Speaker 04: And the requirements for the regional office to adjudicate [00:18:04] Speaker 04: a claim stem from all the other parts of the statute and the regulations determining what. [00:18:11] Speaker 04: If there's an informal claim, the regional office asks the claimant to execute it as a formal claim. [00:18:18] Speaker 04: If there's a formal claim, there would be an adjudication. [00:18:21] Speaker 04: But section 19.9 does not by itself create a claim that the regional office has an affirmative duty to do anything for them. [00:18:34] Speaker 01: appropriate action at some point. [00:18:37] Speaker 04: If there's nothing to adjudicate, yes, Your Honor. [00:18:39] Speaker 01: And that includes not notifying the veteran? [00:18:43] Speaker 04: That's correct. [00:18:43] Speaker 04: If there was nothing before the regional office. [00:18:46] Speaker 04: If what was referred was nothing. [00:18:49] Speaker 04: And the court, excuse me, Mr. Susick has not pointed to anything except for this 1993 document and the basis of a claim. [00:18:58] Speaker 04: And the Veterans Court and the board determined that that was not true. [00:19:01] Speaker 00: That's true if you look at a referral as [00:19:04] Speaker 00: we do now, but back at this time, a referral had more of the makings of a remand. [00:19:10] Speaker 04: I respectfully, Your Honor, I don't believe so. [00:19:14] Speaker 04: A remand is a specific tool for the board when it has a claim before it, properly before it, it has jurisdiction, but determines it cannot make a final decision. [00:19:29] Speaker 04: And so a remand has a specific direction. [00:19:31] Speaker 04: It did this, for example. [00:19:32] Speaker 04: on pages J.A. [00:19:34] Speaker 04: 19 and 20 saying you need to go get these particular documents, you need to have a new medical examination and directing the regional office to do particular things and that is where the... Well, how do you score away with the statement then? [00:19:50] Speaker 00: Such issue was not developed for appellate review and no action by the board. [00:19:54] Speaker 00: By the board, it says as warranted, it says it is referred to the VA regional office for appropriate action. [00:20:03] Speaker 00: And that seems to me to say there's an open claim. [00:20:07] Speaker 00: There's something that wasn't done. [00:20:09] Speaker 00: There's no finality here. [00:20:10] Speaker 00: It needs to be referred back for appropriate action. [00:20:17] Speaker 04: Your Honor, as we stated in our brief, it is a bit misdefined why that final sentence is there. [00:20:26] Speaker 04: Veterans Court determined below. [00:20:28] Speaker 00: There isn't an updating behind it. [00:20:30] Speaker 00: You argue that this sentence is mystifying and confusing. [00:20:34] Speaker 00: But it really isn't. [00:20:38] Speaker 00: I mean, it clearly says that this is referred back to the VA for appropriate action. [00:20:45] Speaker 00: When you take it in context of that entire paragraph, the paragraph is saying there's something that didn't happen here. [00:20:51] Speaker 00: And there's something that's left. [00:20:53] Speaker 00: There's loose ends. [00:20:55] Speaker 04: It certainly suggests that the board believes that there was potentially an open claim, an unadjudicated claim, but there wasn't, Your Honor. [00:21:02] Speaker 00: Well, why would Mr. Susick believe that? [00:21:04] Speaker 00: Why would Mr. Susick believe that, the veteran, reading this, that he's got an open claim and that the regional office is attending to this? [00:21:13] Speaker 04: Well, Mr. Susick did not, in fact, submit anything other than this in 1993. [00:21:19] Speaker 04: which had its own claim stream. [00:21:22] Speaker 03: But why would he? [00:21:23] Speaker 03: The rest of this opinion tells him no action is required of the veteran or his representative until they receive further notice. [00:21:30] Speaker 03: How can you fault him for not submitting more to establish a claim that the board recognizes he has when you expressly also tell him not to submit more? [00:21:40] Speaker 03: I don't understand. [00:21:40] Speaker 04: I apologize, Your Honor, if I sounded like I was faulting the claimant for anything. [00:21:46] Speaker 04: I don't believe there is any fault, but I also, the point here is that if there is no claim to be adjudicated by the regional office, the regional office is not required by section 19.9 to adjudicate a claim that isn't in fact before it. [00:22:06] Speaker 03: Although there's- Time out, time out. [00:22:07] Speaker 03: We have a fact finding by the board that the veteran has further contended that service connection is warranted for post-traumatic stress disorder. [00:22:16] Speaker 03: That is a fact finding made by the board that a veteran is contending this, okay? [00:22:21] Speaker 03: I don't know what he's contending or not contending and nor do I get to review board fact findings. [00:22:25] Speaker 03: But the board found he was making this contention. [00:22:30] Speaker 03: Are you then telling me the RO, without him having submitted anything to disavow that contention at the VA because there was no submission by him because he was told not to submit anything, are you then saying it's okay for the RO to look at it [00:22:42] Speaker 03: and District Guards is more fact-finding without a disavowal by him. [00:22:47] Speaker 03: How does the RO know, for example, what occurred at the hearing? [00:22:49] Speaker 03: Perhaps at the hearing, he orally made these contentions. [00:22:53] Speaker 03: I realize that's not part of this record, but it could have been. [00:22:55] Speaker 03: This is not transcribed. [00:22:57] Speaker 03: How can the VA, without seeking additional information from Mr. Susick, decide suddenly that he has not, in fact, made this contention? [00:23:06] Speaker 04: First, Your Honor, [00:23:08] Speaker 04: A claimant cannot make a claim, or at least in 1995, could not make a claim orally. [00:23:14] Speaker 04: It had to be in some form of writing. [00:23:16] Speaker 04: And that's reflected in this court's decision in Rodriguez, I have this right here, 189 F. [00:23:25] Speaker 04: 3rd, 1351 from 1899. [00:23:31] Speaker 04: There had to be something on the record in writing from the claimant. [00:23:34] Speaker 04: the board's statement by itself does not create a claim. [00:23:38] Speaker 04: Now the regional office had this 1993 document before it and had already adjudicated a pension claim based upon it. [00:23:47] Speaker 04: There was a separate claim. [00:23:49] Speaker 04: This was not a claim concerning the PTSD, but rather the pension benefits, and that that was adjudicated. [00:23:55] Speaker 04: So finding no open request from the regional office [00:24:01] Speaker 04: claimant, there was nothing for the regional office to adjudicate. [00:24:08] Speaker 04: That is why... I mean, aren't we supposed to be pro-claimant? [00:24:12] Speaker 03: Suppose that a veteran walks into the VA and orally makes a claim, clearly, unequivocally. [00:24:18] Speaker 03: And in this case, suppose they walked into the board and there's actually a transcript. [00:24:22] Speaker 03: Suppose there's actually a transcript. [00:24:24] Speaker 03: So they walked into the board hearing and the veteran repeatedly, not represented by counsel, [00:24:29] Speaker 03: says I should have service connection for PTSD. [00:24:34] Speaker 03: Repeatedly makes this verbal assertion at the board hearing. [00:24:37] Speaker 03: Then we have this referral. [00:24:40] Speaker 03: Now there's actually transcript of him verbally saying it, but it's not he didn't file something in writing, but there is a transcript in writing. [00:24:47] Speaker 03: Would the VA then be okay with deciding exactly as they did in this case, according to you, that no claim was actually made and therefore nothing need be done? [00:25:01] Speaker 04: I'm hesitant to say what the regional office order would not have done in that circumstance. [00:25:08] Speaker 04: It may have reached out, but would it be required to if there's nothing from the claimant? [00:25:12] Speaker 03: The claimant comes in orally to the hearing repeatedly without a lawyer present in a pro-claimant system, tells the board over and over that he should have service connection for PTSD, and it's all transcribed clear as day. [00:25:24] Speaker 03: Are you telling me that's not going to amount to an informal claim and that the RO has no obligation to do anything with it? [00:25:31] Speaker 04: After a referral like this? [00:25:34] Speaker 04: In 1995, an informal claim had to be in writing, Your Honor. [00:25:39] Speaker 03: And the fact that it was transcribed, that he made these oral statements doesn't amount to a writing? [00:25:45] Speaker 04: I have not researched that question, Your Honor. [00:25:47] Speaker 04: If you would like an answer to that, I can certainly submit something to the court after this argument. [00:25:54] Speaker 04: They don't know if something written in a transcript could be considered a written informal claim in 1995. [00:26:00] Speaker 04: I'm sorry, Your Honor, I don't know the answer to that. [00:26:05] Speaker 04: But it is true that the claim must originate from the claimant in some way, and that is the key here. [00:26:12] Speaker 03: Well, the board said it did. [00:26:13] Speaker 03: The board says the veteran has further contended. [00:26:16] Speaker 04: The board says the claim did originate from the claimant. [00:26:21] Speaker 04: case and the Veterans Court below made a factual finding saying we are not bound on referrals for factual findings made by the board previously. [00:26:32] Speaker 04: It looked through the evidence, it looked at this 1993 document and any other evidence in the record and said between 1992 and 2003 there is nothing that can be construed and they made a factual finding that is binding on this court and that this court cannot conclude. [00:26:50] Speaker 00: When you respond to Judge Warren, you say that the claim had to have been in writing. [00:26:57] Speaker 00: Had it had to have been on a certain form? [00:27:01] Speaker 04: An informal claim, no, Your Honor. [00:27:02] Speaker 00: Okay, so let's go back and look at the March 30, 1993 writing where it says at the very top, Statement in Support of Claim. [00:27:13] Speaker 00: And the second paragraph, the veteran notes, [00:27:16] Speaker 00: I also have been treated for a nervous condition since March of 1985. [00:27:21] Speaker 00: Currently, I am hospitalized for this condition. [00:27:24] Speaker 00: And then he goes on and talks about the time being effective on March of 93. [00:27:33] Speaker 00: Why isn't that a claim for a nervous condition? [00:27:36] Speaker 00: And why wouldn't that be the basis for a referral back to the RO to take a look at this? [00:27:43] Speaker 00: and find out if this nervous condition can give the veteran the opportunity to determine, to show that this nervous condition is due to his post-traumatic stress disorder. [00:27:54] Speaker 04: The reason why, Your Honor, is as the Board and the Veterans Court determine below, this does not constitute any disagreement with the idea that he has only conditions that are non-service connected. [00:28:07] Speaker 04: This is a request for pension benefits [00:28:10] Speaker 00: which are mutually exclusive but later on later I mean at this point he's not trying to establish a service connection later on he is now he's saying look in 93 I told you as far back as 93 I had this nervous condition I was hospitalized there's the evidence there's the basis for this for the referral back to the RO well if he said you're positing your honor [00:28:38] Speaker 04: some subsequent statement saying, this is how I have a claim for PTSD. [00:28:44] Speaker 04: That would be his claim for PTSD. [00:28:47] Speaker 04: This alone, the board determines, is not requesting service connection and is not new and material evidence concerning PTSD. [00:28:54] Speaker 04: And as the board found below, it actually referenced not PTSD, but other conditions such as substance abuse, which you're on a reference earlier. [00:29:05] Speaker 04: which are not service-connected. [00:29:07] Speaker 04: Again, this is about a pension benefit for conditions that are not service-connectable. [00:29:13] Speaker 04: And that's what the board and the Veterans Court determined this evidence was, and that's how it made a factual finding that this cannot constitute an open claim that the regional office had to adjudicate. [00:29:25] Speaker 04: And I see my time is clued with respect to the request that the court affirms in the Veterans Court decision. [00:29:32] Speaker 03: Thank you, Mr. Ferber. [00:29:33] Speaker 03: Mr. Carpenter, you have about a minute and a half left. [00:29:36] Speaker 03: Do you have anything else you'd like to add? [00:29:41] Speaker 01: I really did not, Your Honor, unless there's any questions from the panel. [00:29:45] Speaker 01: Mr. Carpenter, as I understand it, what this arose from was a prior to service automobile accident, which the veteran said was aggravated by his servicing. [00:29:58] Speaker 01: That was the gravamen of the [00:30:00] Speaker 01: of the client she eventually was found to be entitled to service connection for from 2003 forward. [00:30:06] Speaker 03: Thank you very much.