[00:00:04] Speaker 01:
Our first case today is 2016-1723.

[00:00:08] Speaker 01:
Batson versus Shulkin.

[00:00:16] Speaker 06:
Mr. Carpenter, please proceed.

[00:00:27] Speaker 06:
Veterans Court made a clear error of law when it permitted the use of the implicit denial rule by the Board of Veterans Appeals in the adjudication of Mr. Batson's appeal of the effective date assigned for his Board of Special Monthly Compensation.

[00:00:42] Speaker 06:
Mr. Batson took a direct appeal of the effective date assigned by the VA for his Board of Special Monthly Compensation based upon his need for a half-month sentence.

[00:00:52] Speaker 06:
This was the proper way for him to have obtained a direct review of his assertion that his award was based upon the need of aid to tenants based upon a claim or issue that was first raised in 1993 with his initial application.

[00:01:09] Speaker 06:
That application was known for pension.

[00:01:12] Speaker 06:
This court in the recent Andrews case explained that the implicit denial rule as a legal matter

[00:01:20] Speaker 06:
requires that there be knowledge of the existence of a claim, adjudication of a claim, and notice of the adjudication to the veteran of that claim.

[00:01:33] Speaker 07:
Mr. Carpenter.

[00:01:36] Speaker 07:
Yes.

[00:01:37] Speaker 07:
I think you've made a compelling argument with respect to the implicit denial aspect of this case.

[00:01:43] Speaker 07:
And it's almost outrageous what has transpired here and what this poor

[00:01:51] Speaker 07:
poor veteran has had to go through with this 24-year-old claim.

[00:01:57] Speaker 07:
But as I understand it, correct me if I'm wrong, the implicit denial aspect of this case is relevant to the effective date of his claim, correct?

[00:02:10] Speaker 07:
You're trying to push back the effective date

[00:02:13] Speaker 06:
Well, he was awarded initially pension, then he was awarded compensation, and then he was awarded special monthly compensation, which is the matter of issue in this.

[00:02:24] Speaker 07:
Right.

[00:02:25] Speaker 07:
And you're trying to push the effective date of the special compensation back to 93.

[00:02:30] Speaker 06:
From 2000, which is its current effective date, to 1993.

[00:02:35] Speaker 07:
That's correct.

[00:02:38] Speaker 07:
The board made a fact finding that there's no evidence to support his determination of blindness under the two regulations that are in play here prior to 2005, I think.

[00:02:57] Speaker 01:
You said 2000, but isn't it 2005?

[00:02:59] Speaker 01:
I'm confused.

[00:03:01] Speaker 01:
Maybe you could explain that part.

[00:03:03] Speaker 06:
In the 2005 decision, Your Honor, when they made the assignment of the effective date for the award of special monthly compensation, they actually took it back to the 2000 date.

[00:03:13] Speaker 00:
Do you have a cite for that?

[00:03:14] Speaker 06:
Yes.

[00:03:15] Speaker 06:
In the record, I believe that Appendix 43

[00:03:19] Speaker 06:
You will see that the K-1 entitlement specializing compensation under 30-80 SC-11-14 subsection K is effective from 362,000.

[00:03:33] Speaker 01:
Okay.

[00:03:33] Speaker 01:
Where is that?

[00:03:34] Speaker 06:
I'm sorry.

[00:03:36] Speaker 07:
Okay.

[00:03:37] Speaker 07:
43.

[00:03:38] Speaker 01:
Okay.

[00:03:38] Speaker 01:
But that, no, that's the 10%.

[00:03:40] Speaker 01:
That's not, is that the amount?

[00:03:44] Speaker 01:
For purposes of A&A, really?

[00:03:46] Speaker 06:
Yes, it is, Your Honor, because that's under subsection K. Subsection K of 1114S is the special monthly compensation.

[00:03:55] Speaker 01:
So did the board err, then, on page 205 of the appendix, which is the 2014 decision?

[00:04:04] Speaker 01:
The board says, at the bottom, why don't you start on 204 of your appendix.

[00:04:13] Speaker 08:
Got it.

[00:04:13] Speaker 01:
The board says at 204, even assuming without conceding, the claim remained pending and unadjudicated.

[00:04:19] Speaker 01:
The claim for an earlier effective date still fails as the evidence, blah, blah, blah, shows there was nothing before May 13, 2005.

[00:04:28] Speaker 01:
Are you telling me that he was awarded compensation in 2000, but this board made a fact finding there was no evidence prior to 2005?

[00:04:37] Speaker 01:
I'm confused.

[00:04:38] Speaker 01:
Do you understand my confusion?

[00:04:40] Speaker 06:
I do understand your confusion, Your Honor, and I believe that the Board was confused likewise.

[00:04:46] Speaker 06:
The unusual nature of this case was that there were successive claims that dealt with separate issues.

[00:04:54] Speaker 06:
The grant for the difference between pension, which means it wasn't related to service, although in this case it was related to VA medical treatment, which was the cause of his injury to his eye,

[00:05:07] Speaker 06:
That compensation was granted or moved from pension in 2000, or based upon a 2000 claim.

[00:05:17] Speaker 06:
Later in 2005, he then filed a claim for the aid and attendance portion.

[00:05:25] Speaker 06:
When they granted it in the decision in 2005, May 2005, they gave an effective date according to this

[00:05:36] Speaker 06:
rating decision at Appendix 46 of March 6, 2000.

[00:05:45] Speaker 00:
What about, I'm going back to Appendix page 43, there's two different things listed there near the bottom.

[00:05:51] Speaker 00:
There's the one that says pension entitlement decisions permanent and total from 3-6-2000, which I think you were referring to earlier, but then there's also something that says

[00:06:02] Speaker 00:
special monthly pension, veteran ANA, not at government expense from 5-13-2005.

[00:06:08] Speaker 00:
What's that second part about and how does it relate to the claim at hand today?

[00:06:14] Speaker 06:
Those are references being made to the award of pension.

[00:06:19] Speaker 06:
The award to pension was made in 1993.

[00:06:22] Speaker 06:
At that time, the loss of use of the eye based upon his visual acuity was granted at that time at a 10% rate.

[00:06:34] Speaker 06:
That is a separate award.

[00:06:37] Speaker 06:
from the main award, if you will, for the bilateral detachment that he was granted pension for and trying to be totally and permanently disabled.

[00:06:50] Speaker 06:
So when that award was made, they made a partial grant of special monthly compensation, but not the full grant or the secondary grant, if you will, for aid and attendance.

[00:07:03] Speaker 06:
And that aid and attendance

[00:07:05] Speaker 06:
was in fact awarded by this May 2005 decision, at least as I read the record, Your Honor.

[00:07:13] Speaker 06:
And I think, as Judge Moore has correctly pointed out, that contradicts the findings made relative to able attendance that was made by the board in an earlier board decision.

[00:07:25] Speaker 01:
But again, it doesn't answer the question.

[00:07:28] Speaker 01:
I guess you've confused me enough that I really need an answer.

[00:07:32] Speaker 01:
Has he been receiving the ANA portion of the pension from May 13, 2005 forward-looking, or has he been receiving that portion of the pension from March 6, 2000 forward-looking?

[00:07:48] Speaker 06:
Based upon my reading of the record, Your Honor, he has been receiving that since 2000, based upon the entry under the heading, Special Monthly Compensation, in the center of the page where it refers to K-1.

[00:08:02] Speaker 06:
K-1 is an award of aid and attendance.

[00:08:06] Speaker 06:
Both of those special monthly compensation dates are indicated not with separate dates, but with a single date from March 6, 2000.

[00:08:15] Speaker 01:
So he couldn't have gotten K-1 special monthly compensation from March 6, 2000, unless he had established ANA entitlement as of that date?

[00:08:28] Speaker 06:
That's right.

[00:08:29] Speaker 01:
That's very interesting.

[00:08:30] Speaker 06:
And I think that Frank Yerner reflects the mishandling of this case

[00:08:35] Speaker 06:
from the beginning and the disregard for the evidence that was in there in relationship.

[00:08:42] Speaker 01:
Well, and you know, unlike a lot of cases, Mr. Carpenter, where you seem to be at odds with the government, it seems that the government agreed with you on three separate occasions that the board mishandled this case and that you filed joint motions for remand

[00:08:57] Speaker 01:
Out of curiosity, I believe those were filed before your involvement in this case.

[00:09:01] Speaker 06:
That's right.

[00:09:02] Speaker 06:
I didn't want to make that clear.

[00:09:03] Speaker 01:
No, that's fine.

[00:09:03] Speaker 01:
But who drafted them, to your knowledge?

[00:09:05] Speaker 01:
Were they drafted by the government?

[00:09:08] Speaker 01:
Drafted by the government.

[00:09:09] Speaker 01:
And so when we interpret stipulations or contracts, we generally interpret them against the drafter, don't we?

[00:09:15] Speaker 01:
Yes, sir.

[00:09:15] Speaker 01:
So if there is any confusion in those stipulations at all, that would really be on the government, not on Mr. Batson.

[00:09:24] Speaker 08:
Yes, sir.

[00:09:24] Speaker 01:
And he was not represented by counsel.

[00:09:27] Speaker 01:
So there is an entry of representation earlier on, but it looks like it's a union rep.

[00:09:33] Speaker 01:
I don't know if they're called union reps.

[00:09:35] Speaker 01:
Thank you.

[00:09:35] Speaker 01:
It looks like it's not an independent lawyer.

[00:09:38] Speaker 01:
It's somebody that just helps claim processing.

[00:09:41] Speaker 06:
No, that's great.

[00:09:43] Speaker 06:
And to be fair, Your Honor, I believe that the counsel below in entering into these joint remands with the government simply

[00:09:51] Speaker 06:
misunderstood the way in which the implicit denial rule operated.

[00:09:56] Speaker 06:
And in the prior remand, it was sent back for consideration under the implicit denial rule based upon the criteria set out in the Cogburn.

[00:10:06] Speaker 06:
But this is not an implicit denial case, because there was never an adjudication.

[00:10:14] Speaker 06:
And without an adjudication, there can't be an implicit denial.

[00:10:19] Speaker 07:
The reason I asked about the evidence with respect to the ANA portion of this claim is that it seems to me whether it's 2000 or 2005, there were fact findings made with respect to the evidence that would support his qualification for some ANA under the two regulations that are in play.

[00:10:48] Speaker 07:
Obviously we don't have jurisdiction to address any questions of fact or the application of law to fact.

[00:10:54] Speaker 07:
No, you do not, Your Honor.

[00:10:56] Speaker 07:
So my point is that if there's a fact finding here, whether it's right or wrong or confused or inconsistent, there were fact findings that we can't address that would foreclose going back any farther than the effective date of the evidence.

[00:11:16] Speaker 06:
But Your Honor, those fact findings

[00:11:18] Speaker 06:
are inconsistent with the board's reliance on the implicit denial rule.

[00:11:23] Speaker 06:
The implicit denial rule says it doesn't make any difference what happened before.

[00:11:28] Speaker 06:
So those fact findings are not relevant because there was a denial.

[00:11:33] Speaker 06:
And you had an obligation, Mr. Veteran, to appeal that decision.

[00:11:37] Speaker 06:
He did not appeal it, therefore it became final.

[00:11:40] Speaker 01:
So you think, so just to be clear, you think

[00:11:44] Speaker 01:
that their subsequent decision, where they say even assuming without conceding the claim remain pending out of Jucade, you think all the rest of that is suffering from the infirmity of their errors under the implicit denial rule, and that if we were to agree with you on implicit denial, we ought not to look at this as an alternative conclusion, but rather one that suffers from some of the same infirmities?

[00:12:09] Speaker 01:
Is that your idea?

[00:12:11] Speaker 01:
Now, let me ask you one other question relevant to this.

[00:12:13] Speaker 01:
Which is, when a veteran files a claim, I'm trying to understand the nature of how the system works in terms of effective filing date.

[00:12:23] Speaker 01:
And I understand that there's a regulation that says, whether it's an original claim, a reopened claim, or a claim for increase, the effective filing date is the earlier of either of two things.

[00:12:35] Speaker 01:
When the original claim was filed, I'm sorry, can I ask you to stop talking please?

[00:12:41] Speaker 01:
The mic's picking you up and I can't even hear anything.

[00:12:44] Speaker 01:
It's very loud.

[00:12:45] Speaker 01:
Please don't.

[00:12:46] Speaker 01:
Anyway, so when the regulation says the earliest effective date for any of those claims would be either of two things, the date of the original claim or the date when entitlement arose.

[00:12:59] Speaker 01:
Now stick with me for a second.

[00:13:01] Speaker 01:
I guess what, here's my problem.

[00:13:03] Speaker 01:
If I see this case as there having been a claim in 1993 and it was never adjudicated,

[00:13:11] Speaker 01:
What does that mean for effective filing date?

[00:13:14] Speaker 01:
It was finally adjudicated in 2005 when he had presented what really looks like quite a formal, repetitive claim of something he had filed earlier.

[00:13:24] Speaker 01:
I mean, doesn't the government have a duty to assist him in developing his claim?

[00:13:28] Speaker 01:
Shouldn't they at that point give him an opportunity under all of the rules and regulations to at least supplement with evidence that says, okay, now you found in my favor in 2005,

[00:13:39] Speaker 01:
Now let me show you that the same infirmities that I have that require aid and assistance actually also existed in 1993.

[00:13:46] Speaker 01:
I mean, is there anything, help me from a regulatory or a statutory standpoint to understand what obligation, if any, the government had to assist him in the development of a claim that they failed to recognize at the time.

[00:14:00] Speaker 06:
Well, I believe that the congressional mandate is for the VA to fully develop a claim on the merits before they decide it.

[00:14:11] Speaker 06:
The problem in this case is that they developed the claim as to the pension portion and then ignored evidence which raised the special monthly compensation aid and attendance component.

[00:14:22] Speaker 06:
And so it just simply got misplaced literally for three different adjudication cycles.

[00:14:29] Speaker 06:
In the third adjudication cycle, it was presented directly to the VA and then they granted it.

[00:14:35] Speaker 01:
That's the 2005 application, along with there was a VA, was it a VA performed examination of the veteran?

[00:14:43] Speaker 01:
that I read that detailed all of the ways in which he needs aid and assistance.

[00:14:48] Speaker 01:
Yes.

[00:14:48] Speaker 01:
Was there never any similar VA examination performed in response to the claim he filed in 1993?

[00:14:54] Speaker 01:
No, there aren't.

[00:14:55] Speaker 06:
And part of the problem here is that under the original application, it is an application for compensation.

[00:15:01] Speaker 06:
The VA doesn't have a, well excuse me, it does have a separate form for aid and attendance, but usually that's after you have become

[00:15:13] Speaker 06:
service connected, and then your disabilities increase to a level of severity.

[00:15:18] Speaker 06:
In this case, he was at that level, or at least two different board decisions found that the issue was reasonably raised in 1993 of his need for aid and attention.

[00:15:30] Speaker 01:
But the problem is, Mr. Carpenter, that seems to ask us to look in behind fact findings, which makes me very, very nervous.

[00:15:37] Speaker 01:
And I guess what I'm trying to get out from, get from you is some mechanism by which I can say,

[00:15:43] Speaker 01:
that the government screwed up in that they should have allowed him to present evidence or develop the claim or demonstrate since they failed to recognize the claim for so many decades.

[00:15:54] Speaker 01:
And then when finally formally presented with it, they immediately agreed that he was entitled to the relief.

[00:16:00] Speaker 01:
That is there some mechanism by which he ought to be allowed to go back and show through new evidence that I had these same problems in 93

[00:16:09] Speaker 01:
You just didn't help me develop them or I didn't develop them because you weren't adjudicating that claim.

[00:16:13] Speaker 01:
Do you understand where I'm trying to go?

[00:16:15] Speaker 06:
And that mechanism is precisely what he did in this case when he appealed the effective date assigned.

[00:16:22] Speaker 06:
He said, I have had this since 1993.

[00:16:24] Speaker 00:
What evidence did he put on of that?

[00:16:29] Speaker 06:
the evidence that was already of record, including his own statements that he was unable to do certain things and other people had to do those things.

[00:16:39] Speaker 06:
He didn't get a VA examination until the 2005 adjudication.

[00:16:44] Speaker 01:
So here's my problem.

[00:16:46] Speaker 01:
The VA said, we agree in 2005 you've established evidence that you can't do stuff for yourself and you need constant aid and assistance.

[00:16:55] Speaker 01:
But I guess I feel like I've looked at that evidence and it seems to have blinders on.

[00:16:59] Speaker 01:
What that evidence doesn't do is consider whether he had the same problems in 1993.

[00:17:05] Speaker 06:
That's correct, Your Honor.

[00:17:06] Speaker 01:
And so while I may not have the ability to review the record and decide whether he had or had not introduced evidence in 1993 that entitles him to an early or effective date, is there a rule or regulation that I could interpret that suggests

[00:17:22] Speaker 06:
he ought to be given the chance to do that.

[00:17:33] Speaker 06:
developing evidence relative to the reasonably raised issue of whether or not he was or wasn't in need of aid and attendance.

[00:17:40] Speaker 06:
And then in 2005 when he filed his notice of disagreement on the effective date, they didn't bring him in for an examination to determine whether or not he did or didn't have that level of disability requiring aid and attendance back in 1993.

[00:17:56] Speaker 07:
Did you make any claims that there was a violation of the duty to assist in this case?

[00:18:01] Speaker 06:
No, Your Honor.

[00:18:02] Speaker 06:
The duty to assist is inherent, both from a statutory as well as a regulatory obligation on the part of the VA, and that's where we get back to the congressional mandate that the expectation of Congress is, is that claims will be fully developed before they're decided.

[00:18:17] Speaker 06:
This case was not fully developed before it was decided in 1993.

[00:18:22] Speaker 06:
They left off that vital piece of an issue that has been conceded in two board decisions as having been reasonably raised that he was in need of aid and attendance.

[00:18:32] Speaker 06:
And that then becomes a factual question for the VA to determine anew with the benefit of the duty to assist to determine what his level of disability was between 1993 and 2000.

[00:18:43] Speaker 01:
Should we give anything else?

[00:18:46] Speaker 01:
We should hear from the government.

[00:18:47] Speaker 01:
I can't see my clock.

[00:18:49] Speaker 01:
It's hidden under all my briefs.

[00:18:51] Speaker 01:
You've gone substantially over.

[00:18:53] Speaker 01:
I'll restore your rebuttal time.

[00:18:54] Speaker 01:
I didn't realize.

[00:19:02] Speaker 01:
Sorry, Mr. Carpenter.

[00:19:04] Speaker 01:
Put these on the floor.

[00:19:07] Speaker 01:
Maybe that'll help.

[00:19:11] Speaker 05:
May I please support?

[00:19:13] Speaker 05:
Your Honor, I think it might be helpful to go over a little bit of a timeline of what occurred here, because based upon what I'm hearing in argument today, Mr. Besson's argument is substantially changed, because we're now talking about compensation, disability compensation, instead of pension.

[00:19:26] Speaker 05:
These are two different things.

[00:19:28] Speaker 05:
Compensation has to be service-connected.

[00:19:30] Speaker 05:
Pension does not.

[00:19:32] Speaker 05:
So in 1993, Mr. Besson filed a claim for pension.

[00:19:35] Speaker 05:
And it included a notation.

[00:19:37] Speaker 05:
And this is on page of the appendix 19.

[00:19:40] Speaker 05:
that said A, ampersand A, question mark, which ultimately was determined to be an applied claim for aid and attendance.

[00:19:50] Speaker 05:
Mr. Batson received three letters from September 1993 to January 1994 granting him a pension, but not granting him aid and attendance, special monthly pension, on top of that pension.

[00:20:06] Speaker 07:
When has he started

[00:20:08] Speaker 07:
When did he start receiving benefits for aid and assistance?

[00:20:13] Speaker 05:
The record shows he started receiving a special monthly pension for aid and assistance, which is the subject of this appeal, on May 13, 2005.

[00:20:20] Speaker 05:
And that can be seen on page 42 of the appendix.

[00:20:26] Speaker 04:
So I'm just looking to that right now, confirming that my timeline that I drafted for honors is correct.

[00:20:34] Speaker 04:
Yes, page 41 and 42 both say, that climate for special monthly pension based on an E for A in attendance is established effective in May 2005.

[00:20:45] Speaker 05:
Now, the 2000 D that Your Honor is discussing with counsel for Mr. Batson,

[00:20:53] Speaker 05:
was for a different pain that he filed for service connection for his body.

[00:20:58] Speaker 05:
And that is service connection that arises from an action of the hospital or so on, not typical service connection that your honors might have seen.

[00:21:07] Speaker 01:
In this case, just for the benefit of the students, I won't eat up your time, but it's my understanding that he went in for cataract surgery, and you're not going to like this word, but it was botched.

[00:21:18] Speaker 01:
And it left him blind entirely in one eye, nothing, you know, and then 2200 in the other eye.

[00:21:24] Speaker 01:
And so he's seeking compensation for, he's a veteran who had a surgery at a veteran's hospital that left him far worse than when he had gone in.

[00:21:33] Speaker 01:
And this is compensation related to that.

[00:21:35] Speaker 01:
It was deemed in 2005 that he was, it was deemed in right after the surgery in 93 when he filed a claim, it was deemed that he was entitled to some compensation for this.

[00:21:44] Speaker 01:
In 2005, when he presented more evidence, it was deemed he was entitled to even more compensation.

[00:21:49] Speaker 01:
And what this case is about is trying to see whether or not that more compensation should have been given to him back in 1993.

[00:21:57] Speaker 05:
It's two different compensation schemes, and just to go a little bit more background for the sake of students in the audience as well, we're talking about service connection, which means that the veteran was injured while in service, and then pension, which is just something that's granted for our veterans, that does not need to have come from his actual service.

[00:22:18] Speaker 00:
So in 2000... Is pension particularly for a veteran who served in wartime?

[00:22:25] Speaker 00:
Or because I know that this particular veteran did.

[00:22:28] Speaker 00:
He served in war.

[00:22:30] Speaker 05:
And so I think he was entitled to additional time in the statute itself.

[00:22:34] Speaker 05:
So in 2000, Mr. Batson requested service connection for the eye that was injured during the operation, received it, and received a special monthly compensation on top of that.

[00:22:45] Speaker 05:
Now, that's a completely different standard than a special monthly pension.

[00:22:49] Speaker 05:
That falls under 38 CFR 3.350.

[00:22:53] Speaker 05:
What Mr. Bassin is arguing before the board, before the Veterans Court, and before this court is entitled under 3.351, special monthly pension.

[00:23:02] Speaker 05:
So I don't know why we're bringing up the 2000 day-to-day.

[00:23:05] Speaker 05:
It has no impact on a special monthly pension.

[00:23:08] Speaker 05:
It only has to do with the special monthly compensation so that Mr. Bassin never appeals to the Veterans Court, the Veterans Court never rules upon, and is not currently before this court.

[00:23:20] Speaker 05:
So the question becomes, when did he first start receiving a special monthly pension?

[00:23:23] Speaker 05:
2005.

[00:23:25] Speaker 05:
What is Mr. Besson seeking through this appeal?

[00:23:28] Speaker 05:
An earlier effective date to 1993 when he filed that original claim for a pension.

[00:23:34] Speaker 07:
But there is no evidence in the record that he might be entitled to this benefit prior to May 13, 2005, correct?

[00:23:42] Speaker 05:
That is exactly correct, Your Honor.

[00:23:45] Speaker 05:
That's on page 209 of the appendix.

[00:23:47] Speaker 05:
The board summarizes

[00:23:49] Speaker 05:
but looking at the evidence that it's seen, and says that the earliest that he would have seen to be, the earliest the record shows that Mr. Batson is entitled to a special monthly pension in attendance is May 13, 2005.

[00:24:02] Speaker 00:
I have a question for you.

[00:24:03] Speaker 00:
Now, I think that everyone agrees that the board was not aware, or there's this implicitly raised claim.

[00:24:14] Speaker 00:
And there was never anyone, nobody ever reached out to Mr. Batson.

[00:24:18] Speaker 00:
when he made this reference to ANA in 1993, nobody reached out to him and said, well, this is what you need to do in order to establish ANA.

[00:24:28] Speaker 00:
Is that right?

[00:24:29] Speaker 05:
There was nothing in the records to reflect that.

[00:24:32] Speaker 00:
Would that normally happen?

[00:24:35] Speaker 05:
If it were clear.

[00:24:36] Speaker 05:
If it was clear it was a formal claim, it might have been developed more back in 1993.

[00:24:40] Speaker 05:
But what the board looked at here, and I specifically asked the question,

[00:24:44] Speaker 05:
What did the VA do wrong to not allow Mr. Batson to bring forth evidence of entitlement before 2005?

[00:24:52] Speaker 05:
Well, on three separate occasions, the three joint motions for remand, and these are appendix pages 101, 167, and 125,

[00:25:02] Speaker 05:
The party, the secretary, and Mr. Batson agreed to ask the court to allow appellate Mr. Batson to put forth evidence of entitlement prior to 2005, and also noted that the board could seek additional evidence.

[00:25:16] Speaker 01:
Where can I see?

[00:25:17] Speaker 05:
Can you show me what it was?

[00:25:18] Speaker 05:
This is the last one here, Your Honor.

[00:25:19] Speaker 05:
That would be 167.

[00:25:20] Speaker 05:
So this is the final.

[00:25:21] Speaker 05:
There's three motions regarding the amendment.

[00:25:23] Speaker 05:
This is the final one before the board decision that was affirmed by the Veterans Court.

[00:25:29] Speaker 01:
We don't have that in our appendix.

[00:25:31] Speaker 01:
You didn't give it to us.

[00:25:33] Speaker 01:
No.

[00:25:34] Speaker 01:
I don't.

[00:25:35] Speaker 01:
Mine stops at 165 and then goes to 188.

[00:25:37] Speaker 05:
Oh, I apologize, but I have a copy of my download from the internet.

[00:25:43] Speaker 05:
It includes these pages.

[00:25:45] Speaker 01:
Well, my bound version, which came from somebody, doesn't.

[00:25:49] Speaker 04:
Okay, go ahead.

[00:25:52] Speaker 04:
Your Honor, it says, on remand, appellate will be free to submit additional evidence and argument regarding the claim

[00:25:58] Speaker 05:
I apologize, they say her, but Mr. Batson is... See, I know, and I want to point that out.

[00:26:03] Speaker 01:
One of the opinions, one of the early on board opinions, which supposedly thoroughly reviewed all of the evidence, all of the evidence and concluded that there wasn't sufficient evidence to establish Mr. Batson's entitlement, refers to him throughout as a her and a she.

[00:26:23] Speaker 01:
It really casts doubt

[00:26:25] Speaker 01:
on the likelihood that they thoroughly reviewed his medical evidence because I imagine all of his medical evidence refers to him as a man.

[00:26:32] Speaker 01:
This is not somebody in the LGBTQ community, right?

[00:26:37] Speaker 01:
So this is a person who's been a man throughout his entire time and yet

[00:26:43] Speaker 01:
repeatedly throughout the board refers to him as a her and a she.

[00:26:47] Speaker 01:
I assume because his first name is Phyllis.

[00:26:50] Speaker 05:
That's correct, Your Honor.

[00:26:51] Speaker 05:
That's an excellent observation.

[00:26:52] Speaker 05:
But it would note that that board decision, the secretary entered into a joint motion for remand.

[00:26:58] Speaker 01:
That's not the only one.

[00:26:59] Speaker 01:
There's lots of board decisions.

[00:27:00] Speaker 05:
I believe the last one uses he, Your Honor.

[00:27:03] Speaker 05:
And that's the one that the VA has stuck with and not asked for remand.

[00:27:08] Speaker 05:
Yes, it's absolutely unfortunate that they called Mr. Best by the wrong name.

[00:27:12] Speaker 05:
And I apologize, Ron.

[00:27:12] Speaker 05:
If you're missing 166 and I, you don't have the last board decision.

[00:27:16] Speaker 05:
You don't have any of the evidence, actually.

[00:27:18] Speaker 01:
No, I have.

[00:27:19] Speaker 01:
No, no, no.

[00:27:20] Speaker 01:
You've omitted pages 166 through 187.

[00:27:25] Speaker 01:
You gave me excerpts, basically.

[00:27:28] Speaker 01:
I don't have full documents.

[00:27:30] Speaker 03:
That's a surprise for me.

[00:27:31] Speaker 03:
That's not how it appears on a file copy that the VA has received.

[00:27:34] Speaker 01:
I'll give it to you.

[00:27:35] Speaker 01:
My colleagues can verify.

[00:27:37] Speaker 01:
That's what I have.

[00:27:38] Speaker 01:
But I do have the 2014 board decision, which begins, it says introduction on 188.

[00:27:45] Speaker 01:
So I certainly have that.

[00:27:48] Speaker 01:
I can get it from them.

[00:27:49] Speaker 01:
They apparently have it.

[00:27:50] Speaker 01:
It's just me that doesn't.

[00:27:51] Speaker 05:
So can we circle back to your question, Your Honor,

[00:27:54] Speaker 05:
What opportunity did Mr. Batson have to put forth before the board evidence of entitlement prior to 2005?

[00:28:01] Speaker 05:
Well, we have three joint remands instructing... But this one doesn't instruct what you said it instructed.

[00:28:07] Speaker 01:
You said it instructed him to introduce evidence to establish that his ANA deficiencies predate

[00:28:19] Speaker 01:
2005.

[00:28:20] Speaker 01:
No, no.

[00:28:21] Speaker 01:
This just says, on remand, appellant will be free to submit additional evidence and argument regarding her claim.

[00:28:26] Speaker 05:
But the claim is for an early effective date.

[00:28:29] Speaker 05:
That's what the claim is here, Your Honor.

[00:28:30] Speaker 05:
Early effective date to 1993.

[00:28:35] Speaker 05:
So it's a short sentence and long sentences referring back, obviously.

[00:28:40] Speaker 05:
It doesn't say everything in it, but the claim was for an early effective date to 1993.

[00:28:46] Speaker 05:
Now, Your Honor, this happens on pages 101.

[00:28:49] Speaker 01:
Yeah, on page 101 where it appears, it just says, on remand, a felon is entitled to submit additional evidence.

[00:28:59] Speaker 01:
Full stop, that's it.

[00:29:01] Speaker 01:
No, it doesn't actually say that, actually on page 101.

[00:29:05] Speaker 01:
It does not say that.

[00:29:06] Speaker 05:
I'm wondering does that satisfy the board's duty to assist the veteran to develop a claim that he filed?

[00:29:21] Speaker 01:
If you say to a veteran you can submit additional evidence, is that good enough to satisfy the board's duty to assist

[00:29:29] Speaker 01:
Because abortion to assist doesn't just include telling the veteran what he needs to submit, which you don't do here, but it also includes helping him develop that evidence too, doesn't it?

[00:29:39] Speaker 04:
Oh, certainly.

[00:29:40] Speaker 04:
Yes, it does.

[00:29:41] Speaker 01:
So why wouldn't your examination in 2005, for example, look backwards?

[00:29:46] Speaker 01:
Why wouldn't you have a VA examiner look at him?

[00:29:49] Speaker 01:
and assess whether or not he had some of the same difficulties before 2005.

[00:29:54] Speaker 02:
That's what the board did.

[00:29:55] Speaker 02:
And you can see this reflected on page 205.

[00:29:57] Speaker 01:
No, no.

[00:29:58] Speaker 01:
Those are fact findings the board made about the evidence.

[00:30:01] Speaker 01:
I'm saying, doesn't the VA have an obligation to help the veteran?

[00:30:05] Speaker 01:
Or did Minimum tell him what kinds of evidence he needs to introduce to be able to prove an earlier effective date?

[00:30:12] Speaker 05:
Well, you know, that might be in the record.

[00:30:14] Speaker 05:
It just wasn't started by the parties.

[00:30:16] Speaker 05:
What might be in the record?

[00:30:17] Speaker 05:
What actually evidence was put forward by Mr. Batson.

[00:30:20] Speaker 05:
Mr. Batson, I did believe, had counsel at this time.

[00:30:23] Speaker 05:
He wasn't pro se, following 2005.

[00:30:26] Speaker 05:
Certainly in 1993, a different case was found to be unrepresented at that time.

[00:30:31] Speaker 05:
But certainly, there is a duty to assist and help the veteran bring forth evidence to support their claim.

[00:30:38] Speaker 05:
But it is a two-way street.

[00:30:39] Speaker 05:
Mr. Batson had to put forth some evidence as to what occurred between 1993 and 2005.

[00:30:45] Speaker 05:
The VA medical, all the VA had was VA medical at that time.

[00:30:50] Speaker 05:
And I just turned the page to a guy.

[00:30:52] Speaker 01:
But I guess here's my problem.

[00:30:53] Speaker 01:
So the VA, in evaluating his 2005 claim, the VA did

[00:30:59] Speaker 01:
an evaluation of him.

[00:31:02] Speaker 01:
And that VA medical evaluator, examiner, listed all of his problems that he had.

[00:31:08] Speaker 01:
What that report doesn't do is talk about when these problems started.

[00:31:13] Speaker 01:
When did he first have a need for all of this additional aid and assistance?

[00:31:18] Speaker 01:
It was in the present tense only.

[00:31:20] Speaker 01:
It only analyzed what

[00:31:23] Speaker 05:
issues he had right there

[00:31:41] Speaker 05:
as to whether or not, based upon this under 3.352A, Your Honors, whether he needed assistance on a daily basis.

[00:31:51] Speaker 07:
Isn't that Mr. Carpenter's point that the examination that took place in 2005 was understood that there was a formal claim that had been made at that time, but we now know that there was an informal claim that was made in 1993, and that informal claim counts.

[00:32:11] Speaker 05:
Yes, it absolutely does.

[00:32:12] Speaker 07:
So the question then remains that, well, had the examiners been aware of the fact that this claim was informally made all the way back in 93, maybe their assessment would have been different.

[00:32:29] Speaker 05:
Theoretically, Your Honor, it could have been different at that time, but we can't go back and recreate that exam.

[00:32:34] Speaker 01:
No, but you can actually, right?

[00:32:37] Speaker 01:
Couldn't the examiner in 2005, rather than say, right now, do you need help going to the bathroom?

[00:32:43] Speaker 01:
Oh, I do.

[00:32:44] Speaker 01:
When did that begin for you?

[00:32:46] Speaker 05:
Absolutely, Your Honor.

[00:32:47] Speaker 05:
And that's exactly what happens when somebody files a claim for an earlier effective date.

[00:32:50] Speaker 05:
That's the kind of evidence we're looking for.

[00:32:53] Speaker 01:
Right.

[00:32:53] Speaker 01:
So why didn't you do it?

[00:32:54] Speaker 05:
It was done, Your Honor.

[00:32:56] Speaker 01:
Where?

[00:32:56] Speaker 01:
I don't see any evidence that the medical examiner in 2005

[00:33:01] Speaker 01:
or at any other medical examination that the VA provided, requested, asked for, determined it needed, looked backwards?

[00:33:09] Speaker 05:
Well, Your Honor, the page 208 and 209 talks about evidence before and after death.

[00:33:14] Speaker 05:
And it goes, on the top of 209, moreover, the VA treatment records dated from 1997 to 2000.

[00:33:21] Speaker 00:
But the problem there, and we've read this, we've seen this, but the problem with this evidence is the one that my colleagues is putting out, is that

[00:33:29] Speaker 00:
That evidence wasn't looking.

[00:33:31] Speaker 00:
The examiners there who were doing those medical reports that the board was relying on and analyzing that 208 and 209 were not looking backward at all.

[00:33:41] Speaker 00:
Of course there's no evidence to show when he needed aid and assistance prior to May 2005 because that's not the examination that was being done.

[00:33:52] Speaker 00:
Because nobody thought at that time that there was a claim going back tonight.

[00:33:56] Speaker 05:
Let me read a piece of evidence they were looking at.

[00:33:59] Speaker 05:
In April 2000, record shows that he was ambulatory and in no apparent distress.

[00:34:04] Speaker 05:
That's the evidence they're looking for.

[00:34:06] Speaker 05:
OK, wait.

[00:34:07] Speaker 01:
Time out.

[00:34:08] Speaker 01:
Does that tell you whether he needed help going to the bathroom?

[00:34:11] Speaker 01:
No.

[00:34:12] Speaker 01:
Does it tell you whether he needed help dressing himself?

[00:34:15] Speaker 05:
It could infer that, yes.

[00:34:18] Speaker 01:
Really?

[00:34:18] Speaker 01:
Because there's a 2000 notation in a medical record here that he had trouble dressing himself.

[00:34:22] Speaker 01:
that was never addressed by the board in any of it, anything, but it is in the brief, so you know about it.

[00:34:27] Speaker 01:
There's a 2000 notation in one of his examination reports that says he had trouble addressing himself.

[00:34:31] Speaker 01:
So here's my question to you.

[00:34:32] Speaker 01:
If I was a doctor or a VA examiner, and I'm evaluating you for blindness in one eye and legal blindness in the other eye, what is the likelihood?

[00:34:42] Speaker 01:
And if I'm not evaluating you for whether you need aid and assistance in your daily life by virtue of that disability, what do you think the likelihood is that I would ask

[00:34:52] Speaker 01:
and or even note in the medical file that he needs help going to the bathroom by someone else.

[00:34:58] Speaker 01:
What are the chances I'd ask you that question?

[00:34:59] Speaker 05:
That isn't the only test, though.

[00:35:01] Speaker 05:
I understand that that's the example that I've brought up, but the fact that Mr. Batson is able to attend a doctor by himself, to carry on the conversation, this is something the VA looks at.

[00:35:11] Speaker 05:
They have a duty to assist these veterans for medical examination.

[00:35:15] Speaker 05:
if a veteran walks in for an examination of their eyes, but is clearly experiencing shoulder pain or something like that, the doctor needs to look at that just before the fact that they're a doctor.

[00:35:24] Speaker 01:
But that's the problem.

[00:35:24] Speaker 01:
You said clearly experiencing shoulder pain.

[00:35:27] Speaker 01:
Of course, any healthcare provider who sees a person with a particular injury is going to be responsive to it.

[00:35:34] Speaker 01:
But he had a claim for A&A

[00:35:37] Speaker 01:
which is, I need assistance and aid in my daily life, and nobody in the VA recognized that that was actually a claim he was making, so the relevant questions weren't asked.

[00:35:51] Speaker 01:
And none of the evidence was developed.

[00:35:54] Speaker 05:
During the time periods of the joint motions for remand, it was certainly recognized that there was a claim back in 1993 for AA, and there was an effective date claim on top of that.

[00:36:04] Speaker 05:
Going back to that time, that's why the secretary entered into these three joint motions for remand.

[00:36:09] Speaker 01:
I know.

[00:36:09] Speaker 01:
The secretary honestly did a great job throughout this process.

[00:36:14] Speaker 01:
And I have zero doubt in my mind that the secretary believed when he entered into all these joint remands

[00:36:21] Speaker 01:
that the board was screwing up time and again, that they were taking a flippant approach to the resolution of this man's claim.

[00:36:28] Speaker 01:
I've never seen the secretary enter into so many joint motions for remand and it warmed my heart to see that the government was as interested in seeing Mr. Batson be protected.

[00:36:38] Speaker 01:
This is a former veteran that served our country and worse yet was rendered blind by a botched surgery performed at the VA.

[00:36:45] Speaker 01:
The government did everything right and the board kept

[00:36:50] Speaker 01:
refusing to do what even the government told it it had to do.

[00:36:53] Speaker 01:
That's why you entered into three joint motions for remand.

[00:36:57] Speaker 01:
In the end, the board writes an opinion and just says what it says.

[00:37:02] Speaker 01:
It just seems so tremendously unfair to Mr. Batson.

[00:37:07] Speaker 01:
And it seems like the government was on his side all the way through.

[00:37:10] Speaker 01:
And it seems like the government in the end sort of gave up and said,

[00:37:13] Speaker 01:
All right, well, you know, fourth time's the charm, I guess.

[00:37:16] Speaker 01:
You know, we got to just kind of, we got to kind of live with this at this point.

[00:37:19] Speaker 01:
Why?

[00:37:20] Speaker 01:
Why did the VA do this?

[00:37:21] Speaker 01:
Why was the board so hell bent on denying the spectrum benefits, which even the government repeatedly corrected them?

[00:37:29] Speaker 01:
They needed to address, they needed to focus on.

[00:37:32] Speaker 01:
I mean, there's stuff in those joint remands that seem pretty strongly worded about the government's belief that the evidence he provided of not being able to drive is the kind of evidence, hand to hand, that ought to give you ANA assistance.

[00:37:46] Speaker 01:
I mean, I felt like the government was advocating on his behalf in these joint remand orders.

[00:37:50] Speaker 01:
And yet the board just kept saying, nope, not doing it.

[00:37:53] Speaker 01:
I'm not giving her that aid.

[00:37:55] Speaker 05:
Right, Your Honor.

[00:37:56] Speaker 05:
And I realize that I'm far over my time here, but just I guess to sum up, we've gotten very far into the facts here, Your Honor, and we believe that there is no jurisdiction to entertain these types of issues.

[00:38:07] Speaker 05:
But I would note that in the final board decision, Mr. Batts at this point had three opportunities to request information, to provide information regarding his claim for effective early date.

[00:38:17] Speaker 01:
But do you have an obligation to help him develop that information?

[00:38:21] Speaker 05:
Absolutely, and there's nothing, no evidence in the record that I've seen that he asked for something.

[00:38:27] Speaker 01:
Is that the way it has to work?

[00:38:29] Speaker 01:
Tell me, because I don't know, and I want to know.

[00:38:31] Speaker 05:
Well, if Mr. Max wanted a second examination, he could have rebuffed one, yes.

[00:38:34] Speaker 01:
How did he get the first examination?

[00:38:36] Speaker 05:
He filled out a form for homebound examination, I believe is a short way of saying that form, and submitted it.

[00:38:43] Speaker 05:
It is a special type of examination, not the typical service compensation examination.

[00:38:49] Speaker 05:
So Mr. Bassett had three opportunities before the additional evidence.

[00:38:54] Speaker 05:
The board, we believe, finally did the right thing in the last decision.

[00:38:57] Speaker 01:
Oh, no, you don't think they finally did the right thing.

[00:39:00] Speaker 01:
You wouldn't have filed all those joint motions for remand.

[00:39:02] Speaker 05:
You were personally involved in it.

[00:39:03] Speaker 05:
I'm sorry, let me be very clear which board I'm talking about.

[00:39:05] Speaker 05:
Page 209.

[00:39:06] Speaker 05:
That's where the board got it right.

[00:39:09] Speaker 01:
I don't think the government thinks the board got it right.

[00:39:11] Speaker 01:
I just think the government thinks he wrote a bulletproof opinion.

[00:39:14] Speaker 05:
Well, Your Honor, I'm not sure.

[00:39:15] Speaker 01:
Based on all your joint motions for remand,

[00:39:17] Speaker 01:
I am convinced the government thinks Mr. Batson should have gotten his benefits.

[00:39:22] Speaker 05:
I've seen nothing to reflect that in the record, Your Honor.

[00:39:25] Speaker 01:
Should I read from the joint motions for remand?

[00:39:28] Speaker 05:
Well, I mean, Your Honor, I understand the argument regarding the last joint motion for a remand and what it says.

[00:39:33] Speaker 05:
It says to evaluate him under 3.35C1C3, because that wasn't done.

[00:39:38] Speaker 05:
We agree with that.

[00:39:39] Speaker 05:
Absolutely agree that Mr. Batson, until the last

[00:39:43] Speaker 05:
board decision didn't get his, I'd say, dang court, as it would be an expression to describe that.

[00:39:50] Speaker 05:
The board hadn't taken a fair look at the evidence.

[00:39:53] Speaker 05:
We believe that the board finally took a fair look at the evidence, which we've seen on page 208 and 209, the evidence that was put forth based upon all these joint motions for remand.

[00:40:02] Speaker 05:
So, you know, I know harmless error is a fact issue, and it's something that we don't bring up before this court, but if there is remand, it's the same evidence this board has already looked at.

[00:40:11] Speaker 05:
And there's no evidence in his medical records, no evidence he's put forth, that Mr. Batson was entitled to an aid and attendance payments prior to 2005.

[00:40:23] Speaker 01:
Thank you very much.

[00:40:24] Speaker 01:
Let's give Mr. Carpenter a chance to have a rebuttal.

[00:40:33] Speaker 06:
There's really just one point that I'd like to address here, and that's the

[00:40:39] Speaker 06:
I believe they refer to it as compensation scheme.

[00:40:45] Speaker 06:
I think it's important to understand here that there is no legal difference.

[00:40:51] Speaker 06:
A legal standard, what is required to award aid and attendance for purposes of pension versus purposes of compensation is exactly the same.

[00:41:05] Speaker 06:
in trying to focus this court's attention on how this case came before the war and the lower court.

[00:41:13] Speaker 01:
But you said page 43, where it says K1, special monthly compensation, that K1 is ANA.

[00:41:22] Speaker 06:
Yes, it is, Your Honor.

[00:41:23] Speaker 01:
How do I know that?

[00:41:23] Speaker 01:
Where can I find that out?

[00:41:24] Speaker 06:
1114K in the statute.

[00:41:27] Speaker 06:
38 USC 1114 K is the statutory basis for the award of aid and attendance for compensation.

[00:41:36] Speaker 01:
Statutory basis.

[00:41:37] Speaker 01:
Does it actually say aid and attendance?

[00:41:39] Speaker 06:
Yes, it does.

[00:41:40] Speaker 06:
Those are the words that it uses.

[00:41:41] Speaker 06:
And it explains that a person must be in need of aid and attendance in order to qualify.

[00:41:47] Speaker 06:
There are a number of other qualifications.

[00:41:49] Speaker 01:
So how in the world, though, does this form 43, how can you reconcile what it says when it grants

[00:41:57] Speaker 01:
certain benefits to March 6, 2000, which you are saying are ANA compensation benefits, versus what it appears to say is the monthly pension only kicks in as of 5-13-2005.

[00:42:09] Speaker 06:
What I'm trying to explain, Your Honor, is that there is no distinction between the evidentiary requirements to get qualified for attendance for pension purposes

[00:42:25] Speaker 06:
than there is to qualify for aid and attendance for compensation purposes.

[00:42:30] Speaker 06:
The legal qualifications, the legal standard, the evidentiary proof required to award that benefit is the same.

[00:42:39] Speaker 06:
It doesn't change because at the time, and there's no dispute,

[00:42:44] Speaker 06:
Between 1993 and 2000, this veteran was not receiving service-connected compensation.

[00:42:49] Speaker 06:
He was receiving non-service-connected pension because he was a wartime veteran and because the VA found him totally and permanently disabled as a result of the surgery performed by the VA.

[00:43:01] Speaker 01:
Does that mean when they find totally and permanently disabled, he's getting 100% at that point?

[00:43:06] Speaker 06:
For pension purposes, yes.

[00:43:08] Speaker 06:
that there is only one payment for pension.

[00:43:10] Speaker 06:
You are either qualified for pension and receive the full amount unless it's a needs-based program, so there's dollar offsets if you have other income.

[00:43:21] Speaker 06:
But you are only paid at the total rating.

[00:43:24] Speaker 01:
So when did he start getting paid at the total rating?

[00:43:27] Speaker 06:
In 1993, when he made his first application.

[00:43:31] Speaker 01:
Wait, if he started getting full pension in 93, why was he appealing for more?

[00:43:34] Speaker 01:
I don't understand.

[00:43:35] Speaker 01:
I'm just confused by the facts.

[00:43:39] Speaker 06:
Pension is a needs-based program that does not relate to either a service-connected injury or disease or to an injury sustained as a result of VA medical treatment.

[00:43:51] Speaker 06:
In 2000, he made his claim for compensation, which changed his rate by probably $2,000 to $3,000 per month for the amount that he was receiving for $1,000 to $2,000 a month over what he was getting for pension.

[00:44:10] Speaker 06:
The maximum benefit he gets for pension is set by statute.

[00:44:14] Speaker 01:
It's like 600 and something a month or something like that.

[00:44:16] Speaker 06:
In 1993 it probably would have been close to $1,000 or $1,200 a month and it would have been dependent.

[00:44:21] Speaker 06:
Whereas the compensation in 1993 for compensation purposes would have been over $2,000 per month.

[00:44:30] Speaker 06:
So although they are different statutory schemes, pension versus

[00:44:36] Speaker 06:
the compensation, the entitlement to the benefit that is sought here, aid and attendance, is identical under both schemes.

[00:44:45] Speaker 00:
Is this a mistake then in the rating decision on page JA-43?

[00:44:50] Speaker 00:
I mean, because it treats one as starting being effective from May 13, 2005, and the other as being effective March 6, 2000.

[00:45:00] Speaker 00:
And you're saying the evidence to prove both would be the same.

[00:45:06] Speaker 06:
The way that I read that decision is that when they granted the benefit in 2005, they took the effective date back for aid and attendance, not to the date of the claim in 2005, but to the date of the original claim for compensation in 2000.

[00:45:24] Speaker 00:
But they didn't go back to 1993.

[00:45:26] Speaker 06:
But they did not go back to 1993.

[00:45:29] Speaker 01:
So are you representing that he has been getting the same amount of money

[00:45:36] Speaker 01:
I came in the form of back pay, but basically from 2001 he's been getting the same amount of money.

[00:45:43] Speaker 01:
Meaning there wasn't a big jump in 2005 if you put the back, I assume he got back pay.

[00:45:48] Speaker 06:
Yes he did.

[00:45:50] Speaker 01:
If you put the back pay in.

[00:45:51] Speaker 06:
Although as I recall he was granted the benefit of literally the same month that he made the application in 2000.

[00:46:02] Speaker 06:
In 2000, I'm not sure what the difference was.

[00:46:06] Speaker 01:
Is there anything further?

[00:46:06] Speaker 01:
No, there's not.

[00:46:08] Speaker 01:
Thank you.

[00:46:09] Speaker 01:
I thank both counsel.

[00:46:10] Speaker 01:
This case is taken under submission.

[00:46:12] Speaker 01:
Both counsel did a very effective job of helping the court understand a complicated history and background.

[00:46:18] Speaker 01:
So thank you both.