[00:00:04] Speaker 04: We have a busy morning this morning. [00:00:09] Speaker 04: We have five cases that we're addressing today. [00:00:12] Speaker 04: One is on the briefs. [00:00:15] Speaker 04: And we've received the briefs and are moving forward with that. [00:00:19] Speaker 04: The other four cases are set for oral argument this morning. [00:00:24] Speaker 04: The first case is Sullivan versus McDonald, 15-70, 76. [00:00:31] Speaker 04: Mr. Dojakis? [00:00:33] Speaker 05: Yes, sir. [00:00:34] Speaker 04: Did I pronounce your name correctly? [00:00:35] Speaker 05: Dohaques. [00:00:36] Speaker 04: Dohaques. [00:00:37] Speaker 04: Yes. [00:00:37] Speaker 04: OK. [00:00:42] Speaker 04: I understand you reserved three minutes of your time for rebuttal. [00:00:45] Speaker 04: Is that correct? [00:00:46] Speaker 04: Yes, sir. [00:00:47] Speaker 04: All right. [00:00:47] Speaker 04: You may proceed. [00:00:47] Speaker 05: Thank you, sir. [00:00:48] Speaker 05: May it please the court. [00:00:49] Speaker 05: As I said, my name is Kenny Dohaques. [00:00:51] Speaker 05: I'm here representing Mr. Sullivan. [00:00:54] Speaker 05: The issue in this case is the extent of the VA's duty to assist with regard to VA medical records under 3.159C3. [00:01:03] Speaker 05: And the issue really revolves around whether the records must be relevant before the duty to assist would apply. [00:01:13] Speaker 00: Well, you did not, am I remembering correctly, did not make the argument to the Veterans Court that relevance was not necessary only that there hadn't been a sufficient determination and explanation of it? [00:01:27] Speaker 00: Yes, Your Honor, that's correct. [00:01:28] Speaker 00: Why is that not a waiver problem for this argument? [00:01:33] Speaker 05: Yes, sir. [00:01:35] Speaker 05: Under the jurisdictional statutes, I think that this court's case in Morgan, they looked at whether under 792, I think it was A, created the case jurisdiction after the amendment to the jurisdiction [00:01:56] Speaker 05: And I think it's analogous here because this court ruled that the jurisdiction created kind of a case jurisdiction issue. [00:02:07] Speaker 00: Can I just go about it this way? [00:02:10] Speaker 00: Let's suppose for a minute that on the assumption that relevance was the standard, that I thought it was a problem that the Veterans Court appears to have decided relevance for itself [00:02:26] Speaker 00: incorrectly as a matter of law, because it's a factual matter, and that we were remanding. [00:02:32] Speaker 00: At that point, I assume we could say, by the way, when it goes back to the board, apply the correct standards. [00:02:39] Speaker 00: And if we got to that, and also accepted your view that when the records are VA records, there's no relevance requirement, nevertheless, there's a materiality [00:02:51] Speaker 00: and then the standard of subsection D that says if there's no reasonable possibility of it substantiating the claim, the inquiry can stop. [00:03:01] Speaker 00: What difference would there be between that formulation and relevance? [00:03:14] Speaker 00: The first part of it is, maybe waiver doesn't matter if we're sending it back anyway. [00:03:20] Speaker 00: And the second part of the question is, even if relevance is not required to get the VA records, as opposed to all the other medical records that are in the list, nevertheless, the Secretary doesn't have to do that, can indeed the regulation directs the Secretary to [00:03:44] Speaker 00: refrain from, I think is the word, from getting records if there's no reasonable possibility that it would substantiate the claim. [00:03:50] Speaker 00: And I'm trying to understand, is there any substantive difference between relevance and that subsection D standard about no reasonable possibility, blah, blah, blah? [00:04:01] Speaker 05: Yes, sir. [00:04:01] Speaker 05: I think that there is. [00:04:02] Speaker 05: And the relevance, I think, is a much broader class of evidence. [00:04:08] Speaker 05: When you look at that term, [00:04:11] Speaker 05: No reasonable possibility is essentially the claim. [00:04:15] Speaker 05: First, in the statute itself, it's attached to and when the assistance, it actually defines assistance. [00:04:27] Speaker 05: And we're looking at 5103A, big A, A, I'm sorry, I think it was D? [00:04:40] Speaker 05: No. [00:04:41] Speaker 05: I'm sorry, yes sir, two. [00:04:43] Speaker 05: If no reasonable possibility exists that such assistance would aid in substantiating the claim. [00:04:49] Speaker 05: And so when you look at both the statutory history in Congress, as well as many of the federal register entries that the secretary, when promulgating the regulations, they talked about specifically where the assistance cannot aid in substantiating the claim because there's no legal basis for the claim. [00:05:08] Speaker 05: And that's where the difference is. [00:05:10] Speaker 05: With relevance, [00:05:11] Speaker 05: the evidence becomes does it inform the decision-maker on this particular factual issue? [00:05:18] Speaker 00: Well, I can understand how relevance has to be broader than reasonable possibility of assisting the claim because it could have a substantial role in defeating the claim. [00:05:29] Speaker 00: You've got no interest in that side of relevance. [00:05:32] Speaker 00: How could it be relevant in a way that would be helpful to the claim unless it [00:05:40] Speaker 00: considered with everything else created a reasonable possibility of substantiating the claim? [00:05:47] Speaker 05: Well, I think before you get to that, Your Honor, you have to know what's in the records. [00:05:52] Speaker 05: And I think the limited information in this case... Well, is that true? [00:05:57] Speaker 04: I mean, do you have to know exactly what's in the record in order to determine whether there's relevancy? [00:06:02] Speaker 04: Let's say that it's shown that the record has to do with some activity before the FCC. [00:06:11] Speaker 05: Yes, sir. [00:06:12] Speaker 05: Yes, Your Honor. [00:06:13] Speaker 05: Obviously, there are some evidence that on their face have nothing to do with the claim. [00:06:19] Speaker 05: And I'm not suggesting that all evidence is required to be obtained by the VA. [00:06:26] Speaker 05: This is specifically to VA medical records. [00:06:30] Speaker 04: Yes, correct. [00:06:30] Speaker 04: I understand that. [00:06:31] Speaker 04: But looking at the reasonable possibility that exists now, in this case, we really don't know what's in those records, do we? [00:06:39] Speaker 04: No, sir. [00:06:40] Speaker 04: So there's no way to determine whether there's a reasonable possibility that such assistance would aid in substantiating the claim. [00:06:48] Speaker 04: That's the problem here. [00:06:49] Speaker 04: That's the problem you have. [00:06:50] Speaker 05: Yes, sir. [00:06:51] Speaker 05: Yes, Your Honor. [00:06:51] Speaker 05: That's the problem that I have with them not even attempting to get it or even talking about it. [00:06:57] Speaker 05: We don't know what's in the records. [00:06:58] Speaker 04: Now, they did decide this on the basis of a statement that your client made when he was asked about that. [00:07:04] Speaker 04: And he said, well, there's nothing there. [00:07:08] Speaker 04: I felt good at that time or something to that nature. [00:07:11] Speaker 05: His statement, sir, was that they found nothing wrong with me. [00:07:15] Speaker 05: And that really doesn't inform anybody about the content of those records. [00:07:19] Speaker 05: We know the secretary has acknowledged that they were properly identified within the regulation, which means they know where to get them. [00:07:29] Speaker 04: Wouldn't that statement on its face establish some sort of relevancy? [00:07:38] Speaker 04: It could, depending... I'm not saying it's required. [00:07:41] Speaker 04: I'm just saying, wouldn't a statement like that prompt the VA to say, well, you know, the veteran here thinks that nothing was found wrong with him, but he's a veteran. [00:07:53] Speaker 05: He's not the doctor. [00:07:54] Speaker 05: Yes. [00:07:55] Speaker 05: Yes, Your Honor. [00:07:56] Speaker 05: And that's exactly right. [00:07:57] Speaker 05: He is not the doctor. [00:07:58] Speaker 05: And the issue, too, is not whether there was something wrong with him. [00:08:02] Speaker 05: The issue is his condition itself and the [00:08:06] Speaker 05: the history of his condition, the cause of his condition. [00:08:11] Speaker 05: It's well established, both in the 90s and today, that he has something wrong with him. [00:08:18] Speaker 05: So for him to say that they found nothing wrong with me, I think is patently incredible, and the VA can't hang their hat on that to say... Or even less strongly, but perhaps sufficiently. [00:08:34] Speaker 00: His reporting, and I assume it's a completely accurate report that they found nothing wrong, could mean nothing other than, we know you're in terrible pain, and we've written lots and lots of records of symptoms, about the symptoms in the records, but we can't find what's wrong with you. [00:08:49] Speaker 00: The symptom evidence would probably be pretty significant, right? [00:08:52] Speaker 00: Yes, Your Honor. [00:08:54] Speaker 01: Is it your position that all medical records that would relate to the actual same symptoms or diagnosis that the person is complaining of [00:09:04] Speaker 01: would be relevant or is it just a case by case determination? [00:09:10] Speaker 05: I would say that in all cases VA medical records that relate to a claimed condition fall within the duty to assist. [00:09:24] Speaker 05: Obviously there are protections in there for harmless error both at the board and at the CABC but I think that in any case [00:09:32] Speaker 05: When you're applying for benefits from the VA, you need to understand the history and all of the regulations talk about looking at it through the history of the disease. [00:09:44] Speaker 05: And you can't really be informed unless you have a clear and complete picture. [00:09:52] Speaker 01: I have another series of questions for you that really just is kind of out of my own curiosity. [00:10:00] Speaker 01: Can a veteran go and get his own medical records in any way in these kinds of proceedings by filing a FOIA request? [00:10:10] Speaker 01: I know it's not required. [00:10:11] Speaker 01: I'm just curious. [00:10:12] Speaker 01: I just don't know how it works. [00:10:14] Speaker 05: Yes, ma'am. [00:10:15] Speaker 05: The veteran has access to his or her own records upon request. [00:10:20] Speaker 00: How could we be this far along in the process without having the records in hand by now? [00:10:26] Speaker 05: When they were identified in the 90s, [00:10:30] Speaker 05: This is a lot of a conjecture on my part, but I think that the, obviously we're still in paper records at the time, and they were using the, I've drawn a blank on the term, the VCA did away with the, forgive me, [00:10:58] Speaker 05: They used to have a higher burden prior to under Morton. [00:11:01] Speaker 05: They used to have a higher burden and the term has escaped me. [00:11:07] Speaker 05: I think that you had to pretty much prove a nexus before the VA would even look at your claim. [00:11:16] Speaker 00: You've been litigating even the reopening claim for quite a number of years. [00:11:21] Speaker 00: In answer to Judge Stoll's question, you said, and I was wondering the same thing, we're [00:11:27] Speaker 00: currently in the situation where we're trying to think about whether records we do not have might have anything to say. [00:11:34] Speaker 00: Yes. [00:11:36] Speaker 00: And it's odd that we don't have the records if you could ask for them and get them. [00:11:40] Speaker 05: That's true. [00:11:43] Speaker 05: However, in this particular case, and I think in a lot of cases, one, they're in Asheville and the veteran lives in South Carolina. [00:11:49] Speaker 05: He doesn't have any money to get there. [00:11:52] Speaker 05: Granted, he could send a foreman. [00:11:54] Speaker 05: The VA already has them. [00:11:56] Speaker 05: And it's much easier for the VA to get them than it is for the veteran to obtain them and submit them. [00:12:01] Speaker 05: He submitted medical evidence from many years that he thought was sufficient based on the notice that he was given from the VA, new and material evidence. [00:12:12] Speaker 05: This, I believe, is new and material evidence. [00:12:13] Speaker 04: Would that place an unreasonable burden on a veteran to identify what records a VA has in its possession and then to go get them and bring them, especially when the [00:12:25] Speaker 04: when the statute and the regulation 38 CFR 3159 puts a duty on the VA to assist the veteran in obtaining evidence. [00:12:38] Speaker 04: Yes, sir. [00:12:38] Speaker 04: That was my next point. [00:12:40] Speaker 04: Let me ask you this question. [00:12:42] Speaker 04: When you look at 38 CFR 3.159 C3, obtaining records and compensation claims, I see the word relevant. [00:12:55] Speaker 04: spread throughout there. [00:12:56] Speaker 04: In fact, I think it's in the double digits. [00:12:59] Speaker 04: But it doesn't say relevant with respect to VA medical records or records of examination or treatment at the non-VA facilities authorized by the VA. [00:13:09] Speaker 04: And this is a non-VA facility or facilities authorized by the VA. [00:13:18] Speaker 04: Your argument is that the fact that the word [00:13:22] Speaker 04: is in the provisions above this provision and the ones below it, but not in this particular provision, that that means that the relevancy standard doesn't apply to this particular provision. [00:13:36] Speaker 04: What case law do you have that would support that argument? [00:13:44] Speaker 05: There's a couple cases, sir, that I would cite to. [00:14:01] Speaker 05: I'm sorry, I thought I had this paper out. [00:14:06] Speaker 05: Generally speaking, the VA is presumed to have knowledge of... Keen Corps v. U.S. [00:14:17] Speaker 05: is, I think, our strongest, that when the drafters put a word in one place and not in another, it's presumed to have been intentional. [00:14:25] Speaker 05: And that's, I think, from a long line of Supreme Court case law that [00:14:32] Speaker 05: They know what they're doing, and they know when they want to say something. [00:14:36] Speaker 05: They obviously know how to say it, because they said it here. [00:14:39] Speaker 05: And when they promulgated the duty to assist regulations under other benefits, they included relevant as a descriptor of VA medical records. [00:14:50] Speaker 04: You're well into your rebuttal time. [00:14:51] Speaker 04: Do you have anything? [00:14:52] Speaker 04: You're well into rebuttal time. [00:14:54] Speaker 04: Yes, sir. [00:14:54] Speaker 04: I'll restore a little bit of time for you. [00:14:58] Speaker 04: Coming up. [00:14:59] Speaker 04: OK. [00:15:02] Speaker 04: Ms. [00:15:03] Speaker 04: Baker, what about this notion that the word relevant is not in the provision that's at issue here, in the regulatory provision? [00:15:18] Speaker 02: It's not in the subsection of the provision, but as we explained in our brief, I think it's important to examine this particular provision in the context of the regulatory scheme as a whole and also in context [00:15:32] Speaker 02: of the statutory scheme as well. [00:15:34] Speaker 04: Aren't you then asking us to insert a limitation or a word in this provision that's simply not there? [00:15:41] Speaker 04: Your Honor, the limitation, the relevancy limitation is that... Why shouldn't the plain words, the plain meaning of the statute, apply here? [00:15:51] Speaker 04: Why should we import the word relevant into this provision? [00:15:57] Speaker 02: Because while it's not specifically listed in that subsection, it is in every other aspect. [00:16:03] Speaker 02: It is in the general provisions. [00:16:06] Speaker 02: Excuse me. [00:16:08] Speaker 00: But that, of course, could cut the other way. [00:16:10] Speaker 02: It can. [00:16:11] Speaker 02: However, I do think that in this instance, again, to come back to the statutory scheme, the regulatory scheme, it's important to consider the duty in the context of the duty that Congress sought to impose. [00:16:22] Speaker 02: And then the duty that the VA sought to impose upon itself. [00:16:25] Speaker 00: Well, tell me if I'm understanding this right. [00:16:27] Speaker 00: The statute clearly says relevant. [00:16:30] Speaker 00: It also sets a floor for what the secretary has to get by way of record. [00:16:37] Speaker 00: So it doesn't say the secretary can't do more. [00:16:40] Speaker 00: It also says the secretary shall implement all this by regulation. [00:16:44] Speaker 00: You put that together, and it seems to me subject to one possibility. [00:16:49] Speaker 00: the secretary is perfectly entitled to write a regulations that says, for our own records, we'll do more. [00:16:56] Speaker 00: We get them all. [00:16:57] Speaker 00: And unless there's something in the Federal Register in promulgating the regulations or something that tells us Scrivener's error, just a drafting error, the word was supposed to be there. [00:17:08] Speaker 00: But it's not unreasonable for the secretary to say, our own records, we don't need to put the word relevant in. [00:17:13] Speaker 02: If I may address your question or your point in two points. [00:17:19] Speaker 02: the Scrivener's Error, if you read the Federal Register that the VA published when it was promulgating these revelations, it's actually clear in the Federal Register. [00:17:31] Speaker 00: Is that quoted in your? [00:17:32] Speaker 00: Yes, it is, Your Honor. [00:17:33] Speaker 00: What page on your brief? [00:17:34] Speaker 02: If you could give me one moment, Your Honor. [00:17:47] Speaker 02: I can more easily provide you the citation to the Federal Register. [00:17:50] Speaker 00: I don't have access to that at the moment. [00:17:51] Speaker 02: I understand. [00:17:52] Speaker 02: Give me one moment. [00:17:56] Speaker 00: Unless the pages in the appendix. [00:18:15] Speaker 02: Thank you. [00:18:16] Speaker 02: Misari, Your Honor, it's on page 18. [00:18:29] Speaker 02: So there, if you look at the explanation of the rule that the VA was attempting to promulgate, there they placed the word relevant before the colon. [00:18:41] Speaker 02: It is not separately articulated for each of the subparts that follows the colon. [00:18:45] Speaker 02: So the Federal Register makes clear that the VA was not intending to impose upon itself a duty greater than that imposed by Congress. [00:18:52] Speaker 02: And that's particularly important, if I may turn to the second point, is that Congress very clearly stated that the duty to assist. [00:19:00] Speaker 01: This doesn't really say what, it doesn't say we made a mistake when we didn't include the word relevant in this particular subsection for describing this one type of medical record. [00:19:12] Speaker 01: It doesn't say that. [00:19:14] Speaker 01: It just is something that's like legislative history or regulatory history that's inconsistent with the regulation itself, isn't it? [00:19:23] Speaker 02: No, it doesn't say that they made a mistake because I don't believe the VA understood the wording of the regulation and its intentions to be inconsistent at the time that it published. [00:19:34] Speaker 02: This is the explanation of what it's seeking to publish. [00:19:37] Speaker 02: Again, this is the first publication. [00:19:39] Speaker 02: This is the publication of the proposed regulations. [00:19:43] Speaker 02: This did not change when they published the final version of the regulation. [00:19:48] Speaker 01: Sure, I just thought that you were saying there was something that explained that there was a Scrivener's error. [00:19:53] Speaker 01: No, I did not mean to suggest that. [00:19:55] Speaker 00: When you say this did not change between the notice of proposed rulemaking and the final, what does the this mean? [00:20:03] Speaker 02: I'm sorry, the rule, but the language of this portion, this subsection of the proposed regulation did not change between the [00:20:11] Speaker 02: the proposed rule in the final rule. [00:20:13] Speaker 00: Should I assume that language like this block quote from the Federal Register upon the notice of proposed rulemaking does not appear in the Federal Register announcement of the adoption of the rules finally, or you would have quoted it? [00:20:33] Speaker 02: It does not, no. [00:20:34] Speaker 02: There was no issue or there was no indication that [00:20:38] Speaker 02: that anybody who read the proposed rule, who commented on the proposed rule, understood that the VA should be doing anything other than what the VA understands it to have been doing. [00:20:48] Speaker 02: So it was not addressed in the publication of the final rule, no. [00:20:53] Speaker 03: So the final rule would control here? [00:20:58] Speaker 02: The language of the final rule, and again, in the text of the regulation. [00:21:04] Speaker 04: You're citing us to the [00:21:06] Speaker 04: to the proposed rulemaking process for your proposition that relevancy matters. [00:21:13] Speaker 04: And actually, in the final rule, it doesn't matter. [00:21:16] Speaker 04: They didn't include it. [00:21:18] Speaker 02: Well, Your Honor, the text of the proposed rule, the text of this subsection, did not change between the proposed rule and the final rule. [00:21:28] Speaker 02: So this block quote that I've discussed on page 18 of my brief [00:21:33] Speaker 02: is the VA's explanation of what it is intending to do with the regulation that is at issue here. [00:21:41] Speaker 04: Well, if they intended to do that, why didn't they just insert the word relevant? [00:21:45] Speaker 02: That would have made my job a lot easier, Your Honor. [00:21:48] Speaker 04: I understand that. [00:21:51] Speaker 04: Maybe it's not material then. [00:21:53] Speaker 04: I mean, it would have made your job easier in that you would win. [00:21:57] Speaker 04: But it's not there, so maybe you lose. [00:22:00] Speaker 02: Well, again, if I may put this in context, both in terms of the regulation, this was the second point to Your Honor's question. [00:22:07] Speaker 02: Again, Congress explicitly imposed a relevancy requirement on the duty to assist. [00:22:13] Speaker 02: The purpose of this duty is so that the VA can help veterans, to the extent possible, establish their claim. [00:22:21] Speaker 02: But it's not a fishing expedition. [00:22:23] Speaker 02: It's not an adversarial process. [00:22:27] Speaker 01: Can I ask you about section 3.159D? [00:22:30] Speaker 01: the one that talks about, you know, beyond this relevancy issue. [00:22:34] Speaker 01: It says that the VA can refrain from providing assistance where there's no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. [00:22:45] Speaker 01: How does that factor in here? [00:22:47] Speaker 02: Well, here this gets to, I think, the second portion of your conversation with Mr. DeWakas. [00:22:53] Speaker 02: Mr. Sullivan [00:22:55] Speaker 02: identified these records to some extent. [00:22:57] Speaker 02: He said he sought treatment in 1984. [00:23:02] Speaker 02: But he also said there's nothing wrong. [00:23:05] Speaker 02: Now, he has discussed, well, that could establish a continuity of symptomology, which is one of the elements that a claimant must require to establish a service connection disability. [00:23:17] Speaker 02: However, it doesn't address, and this is specifically what the board found in its 1997 opinion, [00:23:24] Speaker 02: which is page 33 of the joint appendix, considered his testimony that he had made in 1994 and said, well, yes, he talks about how his back hurt previously. [00:23:36] Speaker 02: And he says that there are these records. [00:23:40] Speaker 02: But his subjective assertion of back pain doesn't establish service connection. [00:23:46] Speaker 00: But the records from the 1984 [00:23:52] Speaker 00: medical evaluation at VA might add to that evidence. [00:23:57] Speaker 00: Nobody has ever looked at them and addressed the question of whether they help establish this continuity of symptoms. [00:24:11] Speaker 00: So that can't be the standard for deciding whether, as a threshold matter, one gets the records. [00:24:18] Speaker 02: Well, Your Honor, in 1997, the board didn't decide these records were not relevant or that they were not relevant, and therefore the VA did not have a duty to obtain them because they may help establish continuity of symptomology. [00:24:35] Speaker 02: The board's decision in 1997 was, we understand he's [00:24:40] Speaker 02: continues to complain about back pain, and that continues. [00:24:43] Speaker 02: But that what these records cannot help him do is establish any sort of service connection. [00:24:49] Speaker 02: He, by his own testimony, the doctors didn't find anything wrong with him. [00:24:53] Speaker 01: But wasn't the position that, the reason why he thinks these records are relevant is that it occurred before the other things that the board thought were the cause of the disability, right? [00:25:05] Speaker 01: So if there's something that shows [00:25:08] Speaker 01: that the timing is off from what the board thought. [00:25:10] Speaker 01: Why isn't that relevant? [00:25:12] Speaker 02: Well, Your Honor, he may think that now, but that's not what the record demonstrates. [00:25:16] Speaker 02: In fact, Mr. Sullivan's testimony, the only time Mr. Sullivan raised these records was in 1994 when he was during the hearing before the VA. [00:25:26] Speaker 02: And he said, at some point in 1984, he said by his own testimony, he's not sure whether [00:25:33] Speaker 02: His visit to the Asheville Medical Center predated or post-dated his motor vehicle accident, which occurred in July of 1984. [00:25:42] Speaker 00: Presumably the records will immediately answer that question. [00:25:46] Speaker 02: They could, possibly. [00:25:48] Speaker 04: But what if the veteran had said, I was examined and the doctors found I had tremendous back pain? [00:25:55] Speaker 04: Would you have sought the records then? [00:26:00] Speaker 04: It's not clear whether the VA... Or would you be arguing that a veteran's medical opinion is late testimony and does not have the weight that a doctor's opinion would? [00:26:17] Speaker 02: Well, again, Your Honor, that is exactly what the board found in its 1997 decision. [00:26:21] Speaker 02: Again, this is page 33 of the Joint Appendix. [00:26:24] Speaker 02: The board said his testimony of back pain [00:26:29] Speaker 02: is not competent evidence of a service connection. [00:26:32] Speaker 02: It is not competent evidence of the cause of his backing. [00:26:36] Speaker 02: So while Mr. Sullivan has repeatedly said, well, this could show that my back pain continued through a period of time, the board has found otherwise in a final decision that Mr. Sullivan never repealed. [00:26:48] Speaker 04: So should the veteran have made a legal conclusion, had a legal opinion as to the effect of his statement, [00:26:59] Speaker 02: before the board in 1997 was here today. [00:27:01] Speaker 04: It seems to me that the VA is up here arguing all the time that a layperson's testimony is not worthy of, does not have the same probative weight as a medical opinion. [00:27:13] Speaker 04: But yet, you're holding the veteran's lay testimony and how I felt, or how he felt, to do that, to do just that. [00:27:23] Speaker 02: Again, Your Honor, the decision the board made [00:27:29] Speaker 02: And again, if the final decision, Mr. Sullivan never repealed that decision, was not that he has an established continuity of symptomology. [00:27:38] Speaker 02: It's that he has identified nothing that establishes a service connection. [00:27:45] Speaker 02: He has identified nothing to show that the cause of the pain about which he has continued to complain for now almost 30 years is related to his service in the military. [00:27:57] Speaker 00: Let me see if I... I mean, this is a reopening claim, so reopening claims always occur when there's some prior decision. [00:28:06] Speaker 00: And with the reopening claim, he has to, among other things, show material evidence, something that creates a reasonable possibility of substantiating the claim. [00:28:17] Speaker 00: I may be a little bit off, but roughly that is the regulatory definition of materiality. [00:28:24] Speaker 00: And the duty to assist regulation, or maybe even the statute, if I guess it's the regulation, says the duty to assist applies to claimants seeking reopening. [00:28:36] Speaker 00: So here he is saying, I know I have this standard to meet for reopening materiality. [00:28:46] Speaker 00: There must be some circumstances in which I must be able to meet it, because that's why we have reopening from previous [00:28:54] Speaker 00: previous decisions, unless the board determines that there is no reasonable possibility that these records, which he's adequately identified as to location and date, would substantiate the claim, the VA has to get those records. [00:29:14] Speaker 00: And what could be a response to that is a board determination that [00:29:22] Speaker 00: There really is no reasonable possibility that these could substantiate the claim. [00:29:27] Speaker 00: And the problem is, we don't have that board decision. [00:29:30] Speaker 02: That's not correct, Your Honor. [00:29:31] Speaker 02: We do have that board decision. [00:29:32] Speaker 02: That is exactly the decision the board made in 1997. [00:29:35] Speaker 01: I'm looking at page JA33, which you cited. [00:29:39] Speaker 01: And I don't see where it talks about the Asheville medical record. [00:29:42] Speaker 01: Could you show me where that is? [00:29:44] Speaker 02: It doesn't talk about the Asheville medical record specifically, but these records were identified during the course of this round of proceedings. [00:29:52] Speaker 02: This was Mr. Sullivan's initial claim for service connection. [00:29:56] Speaker 01: I just don't see how I'm supposed to look at page J33 and see that the board made the factual finding that you're asserting about the Asheville Medical Record when it's not discussed here. [00:30:05] Speaker 02: Well, because the board looked at the record developed before it as a whole, which includes his testimony about this. [00:30:11] Speaker 02: And here he talks about, you know, they don't specifically call out this one sentence of testimony, but they talk about all of the information before. [00:30:19] Speaker 02: They talk about the record as a whole. [00:30:21] Speaker 02: And here they note that [00:30:23] Speaker 02: he talks about his pain, he talks about his back pain, but he's identified no records that would connect that back pain to his service connection. [00:30:33] Speaker 02: Again, this is, all of this information, these records were identified during, so it's his second claim before the board, and I'm sorry, Stephen, I'm almost out of time. [00:30:45] Speaker 02: It's his second claim for disability, his first claim for service connection. [00:30:50] Speaker 02: He identified them then, [00:30:51] Speaker 02: The board found that there was nothing in the record to establish his claim, to substantiate his claim. [00:30:59] Speaker 02: And then, oh, I'm sorry. [00:31:00] Speaker 02: I see I'm out of time. [00:31:01] Speaker 02: May I briefly? [00:31:02] Speaker 03: Counselor, you can conclude. [00:31:04] Speaker 03: OK. [00:31:05] Speaker 03: Do you have a concluding sentence? [00:31:07] Speaker 02: Yes. [00:31:09] Speaker 02: The statutory and regulatory scheme are very clear here. [00:31:12] Speaker 02: The duty to assist is for the VA to help claimants in an attempt to establish their claim. [00:31:20] Speaker 02: It's, you know, Congress was clear that their resources were to be targeted toward these types of record. [00:31:26] Speaker 02: It's not a phishing expedition. [00:31:27] Speaker 02: It's not to go out to try to obtain every record possible that may or may not have something to do with this claim, that may or may not help him establish his claim. [00:31:36] Speaker 02: This decision has been, was made in 1997. [00:31:38] Speaker 02: He never appealed it. [00:31:40] Speaker 03: And that's it. [00:31:41] Speaker 03: Thank you. [00:31:44] Speaker 04: Okay. [00:31:44] Speaker 04: All right. [00:31:46] Speaker 04: Thank you. [00:31:47] Speaker 04: Mr. Dajakis, you have two minutes left. [00:31:49] Speaker 04: Two minutes left, or a minute left. [00:31:51] Speaker 04: I'm going to restore you to two minutes, OK, for your rebuttal. [00:32:06] Speaker 05: I have three points that I'd like to make. [00:32:08] Speaker 05: I'd like to start with the statute, 5103A sub-A. [00:32:13] Speaker 05: The secretary shall make reasonable efforts to assist the claimant in obtaining evidence and necessary extension of the claim [00:32:19] Speaker 05: And I would just like to point out, I think it's quite reasonable for the VA to go and get and look at records that they already have. [00:32:26] Speaker 05: Especially in the 21st century, they can click a button on their computer and pull up every single VA medical record that's electronic. [00:32:33] Speaker 05: Granted, these are much older, but I think limiting it to whether or not he's correctly described what the doctors told him, I think it's reasonable for them to go out and get those. [00:32:46] Speaker 00: Since your time is short, I realize I'm going to interrupt your second and third points, but why does the determination by the board in 1997 not amount to a determination that whatever those 1984 records may contain, they can't reasonably substantiate the claim? [00:33:05] Speaker 05: For a couple reasons, sir. [00:33:07] Speaker 05: Number one, there's no indication in 1997 that the board ever considered continuity of symptoms. [00:33:13] Speaker 05: And forgive me, but I don't think SHADE was even decided until right around that same time. [00:33:19] Speaker 05: And so that legal theory wasn't well developed at the board. [00:33:22] Speaker 05: Number two, they never mentioned those specific VA records. [00:33:26] Speaker 05: They talked about other records by name, which dealt with a different time frame. [00:33:30] Speaker 05: But the board never talked about these records. [00:33:33] Speaker 05: And three, well-grounded claim, which was the term that had left my brain for a minute, [00:33:39] Speaker 05: You had to first show competent evidence of a nexus between an injury and service. [00:33:44] Speaker 05: The board in 1997 said, no, it was this car accident that caused it. [00:33:49] Speaker 05: Therefore, there's no well-grounded claim. [00:33:52] Speaker 05: The law changed in 2000, as we know, and the well-grounded claim went away forever. [00:33:57] Speaker 05: And today, now, he just has to show new and material evidence to reopen. [00:34:00] Speaker 05: And we can't forget that that's where we are. [00:34:03] Speaker 05: Under the regulation 3156A, and I am out of time, [00:34:09] Speaker 05: Thank you very much.