[00:00:30] Speaker 04:
Mr. Carpenter, how nice to see you again.

[00:00:32] Speaker 03:
It's been a long time.

[00:00:37] Speaker 03:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. James Kaiser.

[00:00:42] Speaker 03:
The Veterans Court misinterpreted the term relevant as used in the provisions of 38 CFR 3.16 C-1 by requiring that service department records that are received after an original decision must relate... Did you raise

[00:01:01] Speaker 04:
the misinterpretation of the word relevant before the court?

[00:01:09] Speaker 03:
Before the veterans court?

[00:01:11] Speaker 04:
Before the board, I'm sorry.

[00:01:12] Speaker 04:
Oh, before the board, no.

[00:01:16] Speaker 04:
OK.

[00:01:17] Speaker 04:
Why shouldn't we find a waiver then?

[00:01:22] Speaker 04:
Well, if it was, I'm sorry.

[00:01:24] Speaker 04:
Did you mean before the board or before the veterans court?

[00:01:27] Speaker 04:
Before the veterans court, you raised the question of regulatory interpretation.

[00:01:30] Speaker 04:
Yes.

[00:01:31] Speaker 04:
So you knew how to, clearly, knew how to raise that, but you didn't raise a similar question of regulatory interpretation regarding the board's interpretation of relevant.

[00:01:43] Speaker 03:
Well, we did, with respect, Your Honor, rely upon our argument that the board misinterpreted the regulation, and it was the court that adopted the view relied upon by the board that the term relevant

[00:02:00] Speaker 03:
required that the service records received relate to the prior decision or the original decision.

[00:02:10] Speaker 03:
With respect, I believe that we did present this argument, and more importantly, for the purposes of this Court's jurisdiction, it was the interpretation that was relied upon by the Veterans Court.

[00:02:22] Speaker 03:
The Veterans Court specifically adopted the interpretation of the regulation as applied by

[00:02:31] Speaker 03:
the Board of Veterans' Appeals, specifically that the term relevant precluded consideration of this regulation because the service records received did not relate back to the basis for the original denial.

[00:02:46] Speaker 03:
That is a misinterpretation of this regulation.

[00:02:50] Speaker 00:
There is none... You're referring to the part of the Veterans Court's decision, I guess, Mr. Carpenter, at pages three through four of the Joint Appendix?

[00:02:57] Speaker 00:
Is that where...

[00:03:03] Speaker 00:
Specifically, the paragraph starting, however, on Appendix 3.

[00:03:08] Speaker 00:
That's correct, Your Honor.

[00:03:10] Speaker 00:
And going over to page 4.

[00:03:12] Speaker 03:
That's correct.

[00:03:16] Speaker 03:
And in so doing, Your Honor, the Veterans Court clearly relied upon an interpretation of this regulation that imposes an additional burden or requirement for the applicability of this regulation.

[00:03:32] Speaker 03:
Specifically, that the evidence must relate to the basis for the original denial.

[00:03:38] Speaker 02:
You raise an interesting argument here before us, and I think it's a very important one, and one that I find concerning.

[00:03:49] Speaker 02:
But let's look back at the relevance of that material.

[00:03:53] Speaker 02:
In 82, Mr. Keiser had a claim for PTSD.

[00:03:59] Speaker 02:
That was denied, correct?

[00:04:01] Speaker 02:
That's correct.

[00:04:02] Speaker 02:
found that he did not have PTSD.

[00:04:05] Speaker 02:
That's correct.

[00:04:05] Speaker 02:
That he had a personality disorder.

[00:04:09] Speaker 02:
That's right.

[00:04:09] Speaker 02:
And your argument is that the new material that was later acquired should change that decision because it was relevant to that decision.

[00:04:21] Speaker 02:
But yet, the material you have go to a stressor effect for PTSD.

[00:04:28] Speaker 02:
How is it relevant if the examiner found that the problem here was a personality disorder and not PTSD?

[00:04:37] Speaker 03:
Because the term relevant relates to the ultimate decision made by the VA to make the award that the later received records that were received by the VA that in this case related to... How does that change the award if the examiner found

[00:04:54] Speaker 02:
that Mr. Keiser had a personality disorder, not PTSD.

[00:04:59] Speaker 02:
How does material related to a stressor creating PTSD, how does that change that?

[00:05:06] Speaker 03:
Because, Your Honor, what is being reviewed is not the original decision or denial.

[00:05:11] Speaker 03:
What is being reconsidered is the original claim based upon the later award of service connection that is predicated in part upon relevant service records that show that this

[00:05:25] Speaker 03:
veteran participated in combat and therefore when the VA accepted the diagnosis.

[00:05:31] Speaker 04:
But the earlier decision references ambushes, mines and so on.

[00:05:42] Speaker 03:
It does your honor, but the trigger for 3.156C1 is the VA's receipt of

[00:05:51] Speaker 03:
relevant service department records.

[00:05:53] Speaker 03:
It puts no qualification on those records as needing to be related to the reasons for the denial.

[00:06:02] Speaker 03:
This is a red herring, Your Honor, to focus on the basis for the original decision.

[00:06:08] Speaker 03:
The basis for the original decision has nothing to do with the plain language of 3.156C.

[00:06:12] Speaker 04:
Well, isn't it sort of evidence that the

[00:06:17] Speaker 04:
original decision was based on the things that you say are new?

[00:06:22] Speaker 03:
No, Your Honor.

[00:06:23] Speaker 03:
The basis for the VA's regulation at 3.156C is to cure an administrative deficiency.

[00:06:33] Speaker 03:
That administrative deficiency is not getting relevant service department records.

[00:06:39] Speaker 03:
This is not a Q case in which we're trying to determine whether a clear and unmistakable error was made in the original decision.

[00:06:47] Speaker 03:
The determination here is merely, was there an administrative deficiency in failing to get relevant service department records?

[00:06:56] Speaker 03:
And that showing is not capable of dispute on this record.

[00:07:01] Speaker 03:
These records came in in, I believe, 2006, 2007, which was clearly after.

[00:07:09] Speaker 04:
You had newly presented evidence that showed that he enlisted in the Marine Corps.

[00:07:15] Speaker 04:
and they know he's in the Marine Corps.

[00:07:19] Speaker 03:
Would you make the same argument?

[00:07:20] Speaker 03:
No, Your Honor, because having simply been in the Marine Corps does not relate to the eventual award.

[00:07:27] Speaker 03:
Having been in the Marine Corps and participated in combat and then getting a diagnosis that was accepted by the VA was the basis for not only the reopening but the grant.

[00:07:42] Speaker 03:
And it is that grant that

[00:07:44] Speaker 03:
allows for the reconsideration of the original claim, not the reconsideration of the original decision.

[00:07:53] Speaker 03:
It is simply a misinterpretation of this regulation to focus on the original decision.

[00:08:00] Speaker 03:
There is nothing in 3.156C that talks about reconsideration of the original decision.

[00:08:05] Speaker 03:
You reconsider the veteran's original claim, and it is that claim

[00:08:11] Speaker 03:
that has to be reconsidered as a matter of law in this case because the requirements of 3.156C1 are both mandatory and have been met.

[00:08:22] Speaker 03:
They have been met because the VA got relevant service department records.

[00:08:27] Speaker 03:
And to suggest that you can limit the term relevant by tying it to the decision or the reason for the decision is a clear and obvious misinterpretation of this regulation.

[00:08:41] Speaker 00:
Does it make a difference, Mr. Parliament, if any record came in?

[00:08:44] Speaker 03:
Say it.

[00:08:45] Speaker 03:
Say it.

[00:08:45] Speaker 03:
Of course it does, Your Honor, because any record is not the standard.

[00:08:49] Speaker 03:
The standard is a relevant service department record that has to be part of... What makes the record relevant?

[00:08:57] Speaker 03:
That the later decision that made the grant relied in part on that service department record.

[00:09:05] Speaker 03:
And it clearly did here because the decision itself acknowledged it and the board itself

[00:09:11] Speaker 03:
in the decision on appeal, acknowledge that this record was considered by the VA as relevant to the determination to make the grant.

[00:09:22] Speaker 00:
I thought the key thing was, wasn't there a second psychiatric report or psychological study that came in in 06?

[00:09:30] Speaker 03:
That's correct.

[00:09:31] Speaker 00:
And that was the... I mean, that seemed to be the turning point, so to speak, in the case in that

[00:09:39] Speaker 00:
A lot of pretence was given to that.

[00:09:41] Speaker 03:
Yes, because the original diagnosis that was in the record in 1983 at the time that the VA made its decision to deny that relied upon its own examiner who found personality disorder, there was an existing diagnosis that said that Mr. Kaiser's psychiatric symptomatic patterns have been associated with the diagnosis of post-traumatic stress disorder.

[00:10:09] Speaker 03:
and cited to the APA provisions of the DSM for that diagnosis.

[00:10:17] Speaker 03:
So to say that there was no diagnosis is simply inaccurate in the record.

[00:10:22] Speaker 03:
But as it relates to this regulation, this regulation turns on whether or not there was relevant service department records received and relied upon to make the later grant.

[00:10:36] Speaker 02:
I think you'd have an argument if in 1982

[00:10:39] Speaker 02:
For example, a medical examiner would have said, I find no PTSD because there's no stressor in the record, no evidence of the stressor.

[00:10:52] Speaker 02:
But I do find a personality disorder.

[00:10:54] Speaker 02:
But that's not what happened.

[00:10:56] Speaker 02:
But with respect, Your Honor, that's not what happened.

[00:10:58] Speaker 02:
So when we talk about relevant, then you're simply accumulating information that existed in 1982.

[00:11:06] Speaker 03:
But the question of regulatory interpretation here is... And you use the word related.

[00:11:10] Speaker 02:
Now, it could be related to that.

[00:11:12] Speaker 02:
It could be related back to the claim.

[00:11:15] Speaker 02:
But the regulation uses a term relevant.

[00:11:19] Speaker 03:
Yes.

[00:11:19] Speaker 03:
And the relevancy is in relationship to the grant, to the award that is made, in this case, in 2007.

[00:11:28] Speaker 03:
When the grant was made in 2007, it relied upon relevant service department records for the

[00:11:35] Speaker 03:
to predicates that were necessary a diagnosis of post-traumatic stress disorder and an event in service that was corroborated it was the relevancy of those service department records that corroborated that in-service event but there never been a dispute about an in-service event and that's not pertinent let me ask you this, say for example in say in 82-83 that period instead of

[00:12:05] Speaker 00:
what we have in the record, say there weren't any official records, but Mr. Kaiser had been able to find his superior officer.

[00:12:14] Speaker 00:
And that officer, commanding officer, had come in and submitted a declaration, an affidavit, and it said, yes, he was in Operation Harvest Moon.

[00:12:24] Speaker 00:
We came under attack on these days.

[00:12:26] Speaker 00:
He did this and that and so forth.

[00:12:29] Speaker 00:
Would that change the case?

[00:12:31] Speaker 00:
Because there, you would have not an official government record

[00:12:35] Speaker 00:
you would have an after-the-fact statement by a commanding officer, but yet would you still be making the same argument you are now?

[00:12:44] Speaker 03:
I could not make that argument because 3.156C is predicated upon the VA's receipt of service department records

[00:12:52] Speaker 03:
that existed at the time of the original decision and had not been associated with the claims line.

[00:12:57] Speaker 00:
But that's not a service department record, is it?

[00:13:00] Speaker 03:
No, the testimony would not be.

[00:13:02] Speaker 03:
I concede, in your hypothetical, 3.156C would not be available to Mr. Kaiser.

[00:13:09] Speaker 03:
3.156C is only available to Mr. Kaiser because of the VA's receipt of service department records that were relevant

[00:13:18] Speaker 03:
and relied upon by the VA in making the determination to make the award.

[00:13:24] Speaker 00:
I guess what I'm trying to say is, how would those receipt of those official records be relevant if there had already been a statement by a commanding officer in the 8283 time period exactly spelling out what Mr. Keiser did?

[00:13:40] Speaker 03:
And rejected it in the 1983 decision?

[00:13:44] Speaker 00:
No, not rejected, but the examiner said,

[00:13:48] Speaker 00:
I heard what Commander X had to say.

[00:13:50] Speaker 00:
There's no question that he served in Operation Harvest Moon and was exposed to shellfire, mortar fire, et cetera.

[00:13:58] Speaker 00:
But I find that he doesn't suffer from PTSD, but rather has this, as we know, what was found, a personality disorder.

[00:14:08] Speaker 03:
In that scenario, Your Honor, again, 3.156C would not come into play

[00:14:16] Speaker 03:
excuse me, you would not be attacking the 1983 decision.

[00:14:20] Speaker 03:
3.156C is not a collateral attack on the 1983 decision.

[00:14:26] Speaker 03:
It is a supportive

[00:14:31] Speaker 03:
helpful provision by the VA that is remedial in nature to remedy an administrative deficiency.

[00:14:41] Speaker 03:
You read the regulatory history and it is replete with discussion that 3.156C is predicated upon an administrative deficiency.

[00:14:50] Speaker 02:
What's the administrative deficiency here?

[00:14:52] Speaker 03:
Not getting those service department records.

[00:14:55] Speaker 03:
They were available, they existed in 1983, and they didn't get them.

[00:14:59] Speaker 02:
But that's immaterial as to whether the records are relevant or not.

[00:15:04] Speaker 03:
With respect, Your Honor.

[00:15:05] Speaker 02:
Under your argument, and I share Judge Schultz's concern, that under your argument, almost any scrap of material you find later on in a veteran's file, and if you're able to say, oh, this relates back to the 82 decision, you need to reconsider

[00:15:23] Speaker 02:
My disability service connection date.

[00:15:28] Speaker 03:
The provisions of 3.156C entitle every veteran to reconsideration of original claim when the VA did not fully develop the record.

[00:15:38] Speaker 03:
And the fully development of the record under 3.156C is predicated upon service records which exist and were not associated with the claims file at the time.

[00:15:50] Speaker 03:
and then were later relevant, not relevant in 1983, as in this case, but relevant in 2007 to make the award.

[00:15:59] Speaker 03:
If they were relevant to make the award, then that is the key that opens the door to 3.256.

[00:16:05] Speaker 02:
I think that would help if you're arguing, making a cue argument, a clear and unmistakable error, because then what you're doing is you want to change the original diagnosis.

[00:16:18] Speaker 02:
And had the medical examiner said in 82 that I find no PTSD because there's no stressor here, nothing that indicates that, but I do find a personality disorder.

[00:16:31] Speaker 02:
And then years later, 20 years later, you uncover evidence that this colonel or the medals that he got, you uncover information that was in the record somewhere.

[00:16:43] Speaker 02:
And now it's relevant to that original PTSD decision.

[00:16:49] Speaker 02:
But here, there was no 1982 PTSD decision.

[00:16:53] Speaker 03:
Your Honor, it is simply incorrect to attempt to focus on clear and unmistakable error in the 1983 decision.

[00:17:01] Speaker 02:
No, I use that as an example.

[00:17:03] Speaker 02:
I realize that we're not dealing with a Q.

[00:17:06] Speaker 02:
situation.

[00:17:07] Speaker 03:
What we are dealing with is an interpretation of a regulation.

[00:17:11] Speaker 03:
Does this regulation, when it uses the term relevant, relate to the decision, in this case in 2007, or does it relate to the decision in 1983?

[00:17:22] Speaker 03:
That is the question that this panel must answer.

[00:17:25] Speaker 03:
If it relates to 2007, then there was a clear error of law in the interpretation relied upon by the Veterans Court.

[00:17:34] Speaker 03:
If it relates to the 1983 decision, which I believe would be incorrect, then the interpretation relied upon by both the board and the Veterans Court should be affirmed.

[00:17:45] Speaker 03:
But that is simply not the correct interpretation of this regulation.

[00:17:49] Speaker 03:
I have way over my time.

[00:17:52] Speaker 02:
All right.

[00:17:52] Speaker 02:
Let's hear from the other side.

[00:17:56] Speaker 02:
Mr. Hillman.

[00:18:05] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:18:07] Speaker 01:
The purpose of subsection C of 38 CFR 3.156 is to, as everyone seems to agree, ensure that the veteran is not harmed by an administrative error.

[00:18:20] Speaker 01:
So if records are unavailable at the time this claim is evaluated and are later, later become available, either they're declassified as one of the example States or for another reason, that

[00:18:33] Speaker 01:
that administrative error should not harm the veteran.

[00:18:36] Speaker 01:
And so the VA reconsiders the claim based on those records.

[00:18:44] Speaker 01:
That is not what happened here.

[00:18:46] Speaker 00:
Here is the question.

[00:18:49] Speaker 00:
We can only we don't have jurisdiction if a matter wasn't determined by the court alone.

[00:18:57] Speaker 00:
And you argue in your brief that the government argues in its brief

[00:19:03] Speaker 00:
that this whole issue wasn't argued or decided below.

[00:19:08] Speaker 00:
But it really does seem to me, and I mentioned this to Mr. Carpenter and he agreed, that if you look at pages three through four of the appendix, which is the court decision, says the board determined that the newly received service personnel records in the daily log skipped this antecedent to address the next service connection.

[00:19:27] Speaker 00:
That goes on how the board concluded that these documents were not outcome determinative.

[00:19:33] Speaker 00:
It really does seem to me that the issue that we're presented with here, whether you agree with Mr. Carpenter or disagree, was presented below by the Veterans Court.

[00:19:44] Speaker 00:
The Veterans Court basically said, as I read it, that this material that came in in 07 wasn't relevant because the previous diagnosis had been personality disorder, not a determination that he hadn't been exposed to a stressor.

[00:20:02] Speaker 00:
I don't see where there's a waiver or not waived on.

[00:20:05] Speaker 00:
It seems the Court decided the issue.

[00:20:07] Speaker 00:
It's squarely before us.

[00:20:09] Speaker 01:
Your Honor, and I don't want to spend too much time on the waiver point.

[00:20:14] Speaker 01:
As you quoted, the Board did address the relevant issue.

[00:20:17] Speaker 01:
Where we contend there's waiver is that on appeal to the Veterans Court.

[00:20:22] Speaker 00:
The Veterans Court went along, basically, with what the Board did.

[00:20:26] Speaker 00:
So the Veterans Court basically followed the Board and said, OK, Board got it right.

[00:20:32] Speaker 00:
So isn't it before us?

[00:20:33] Speaker 01:
But if that issue, in terms of jurisdiction, I believe it is before this court.

[00:20:39] Speaker 01:
So the issue would waver.

[00:20:41] Speaker 00:
So your argument is even though the court decided it, there's a waiver because Mr. Keiser didn't argue it to the court.

[00:20:51] Speaker 01:
It's not preserved because Mr. Keiser did not argue it to the court.

[00:20:53] Speaker 00:
Even though the Veterans Court decided it.

[00:20:56] Speaker 01:
Yes, Your Honor.

[00:20:57] Speaker ?:
OK.

[00:20:58] Speaker 02:
You're not maintaining your waiver argument anymore, as I understand it.

[00:21:02] Speaker 01:
Your Honor, I think we prevail on the merits as well.

[00:21:05] Speaker 01:
The waiver argument was noted to suggest that the issue wasn't presented to the Veterans Court.

[00:21:13] Speaker 01:
As Judge Schall pointed out, the Veterans Court did focus on what the board did and did address that, but did not have the benefit of briefing in that case, in that instance.

[00:21:24] Speaker 02:
But that's not a waiver issue.

[00:21:27] Speaker 02:
Let's move on.

[00:21:31] Speaker 02:
Here's a problem I have with your argument.

[00:21:34] Speaker 02:
You seem to really mix up the term material as in 3.156 and relevant.

[00:21:46] Speaker 02:
And you're making, you're turning the words relevant official service documents under 3.156C1.

[00:21:55] Speaker 02:
And your argument, and you heard my exchange with Mr. Carpenter, I'm exploring the depths of the definition of relevance.

[00:22:05] Speaker 02:
And it seems to me that your interpretation coincides with material.

[00:22:13] Speaker 02:
It has to be material to the 1982 decision in order to be relevant.

[00:22:18] Speaker 02:
But doesn't the regulation itself separate the two terms?

[00:22:23] Speaker 01:
The regulation does separate that, Your Honor.

[00:22:26] Speaker 01:
And if you look at the regulatory history, the reason was because, under reconsideration, you can have an effective date going back to the original claim, whereas if you submit new and material evidence to reopen the claim, the effective date is typically the date that you submitted that evidence.

[00:22:44] Speaker 01:
It's almost automatic.

[00:22:47] Speaker 01:
Yes, but it's a later.

[00:22:47] Speaker 02:
So they submitted.

[00:22:48] Speaker 02:
They have information that was somewhere in the record.

[00:22:53] Speaker 02:
but wasn't available for whatever reason back in 1982.

[00:22:56] Speaker 02:
It's information that's relevant in that PTSD was raised in a claim in 1982 that wasn't the diagnosis.

[00:23:08] Speaker 02:
And why isn't that information relevant?

[00:23:12] Speaker 01:
It's not relevant because, well, two points, Your Honor.

[00:23:17] Speaker 01:
It's not relevant because that information

[00:23:22] Speaker 01:
doesn't go to anything in 1982 when the claim was denied.

[00:23:27] Speaker 02:
The reason the agency at the time didn't go out and get this evidence that was available... Do you argue that it wasn't material in 1982 because the PTSD claim was denied?

[00:23:40] Speaker 02:
So it's really not... That's your argument.

[00:23:44] Speaker 01:
I think materiality is a stronger, is a higher burden than relevance, but relevance still has to

[00:23:49] Speaker 01:
retain some relationship to the claim.

[00:23:51] Speaker 02:
Well, I'm glad you acknowledge that.

[00:23:53] Speaker 02:
And I agree with you 100% on that.

[00:23:56] Speaker 02:
There's a difference here.

[00:23:57] Speaker 02:
Material is more restrictive.

[00:23:59] Speaker 02:
It's a higher burden than relevant.

[00:24:02] Speaker 02:
Yes, Your Honor.

[00:24:03] Speaker 02:
So don't you just have to show that there is the new information?

[00:24:10] Speaker 02:
Had they presented it in 1982,

[00:24:15] Speaker 02:
the examiner would have taken that information and used it as part of its diagnosis and used it in the process, you know, that particular claim at the time, had it been rejected at that time for whatever reason because it dealt with, you know, the loss of an arm as opposed to PTSD or something like that.

[00:24:33] Speaker 02:
But why is this information not relevant?

[00:24:38] Speaker 01:
Well, because, Your Honor, in 1982,

[00:24:42] Speaker 01:
They had no reason to go out and get this information because there was no question about an in-service stressor.

[00:24:48] Speaker 01:
So there are lots of service records that were available in 1982 that the agency was under no obligation to go out and receive and collect under duty to assist because Mr. Heiser.

[00:25:01] Speaker 02:
It may have been cumulative then to have added that information, but it's still relevant, correct?

[00:25:05] Speaker 02:
I mean, you're saying it wouldn't have made a difference even had they had it.

[00:25:08] Speaker 02:
My question is,

[00:25:09] Speaker 02:
it still belonged, it's still part of that process in 82.

[00:25:18] Speaker 01:
There was information, as Judge Schall pointed out, in the record attesting to Mr. Kaiser's experience in Operation Harvest Moon.

[00:25:28] Speaker 02:
So there's nothing that prohibits the information from being cumulative.

[00:25:33] Speaker 02:
The question is whether it's relevant.

[00:25:36] Speaker 01:
I think, Your Honor, relevance is

[00:25:38] Speaker 01:
has to be defined in context.

[00:25:40] Speaker 01:
You can make the argument that anything related to Operation Harvest Moon was relevant, but that does not, I don't think that would be the right interpretation here, because that would impose the burden on the agency to go out and get all service records on, and you know, the regulation says that they do not have to be related to the veteran.

[00:25:58] Speaker 02:
Well, I think that's what the regulation is intended to do.

[00:26:00] Speaker 02:
I mean, it's to assist the veteran by putting the burden on the administration to go out and get all the information

[00:26:08] Speaker 02:
that it possesses at the time that a claim was filed?

[00:26:14] Speaker 01:
That's not... I don't think that's correct, Your Honor.

[00:26:16] Speaker 01:
I think it's to assist the veteran to put him in the same position he would have been in had those records been available.

[00:26:22] Speaker 01:
So, for example, if a record didn't get to the examiner or if a record was classified and an examiner couldn't access it at the time, if it later becomes declassified or the agency finds it, the veteran shouldn't be penalized because that record did not exist at the time his claim was evaluated.

[00:26:38] Speaker 01:
But that's not the case here.

[00:26:40] Speaker 01:
Here, that same information essentially existed.

[00:26:44] Speaker 01:
If that was the issue, the agency would have been under an obligation to go out and get his combat records.

[00:26:51] Speaker 00:
So what I hear you saying, Mr. Hellman, you would agree that if the original claim had been denied because the examiner had determined there's no evidence that you were in

[00:27:02] Speaker 00:
Operation Harvest Moon or in any other combat situation during the period you were in Vietnam, you'd say we'd have a different case.

[00:27:10] Speaker 01:
That's entirely correct, Your Honor, yes.

[00:27:12] Speaker 00:
And you concede the case?

[00:27:14] Speaker 01:
In that case, yes.

[00:27:16] Speaker 01:
And that was the case, I think, cited in the reply from Emerson.

[00:27:21] Speaker 04:
What you're saying is, in effect, that there were findings of fact made and that the findings of fact that were made in 8283

[00:27:31] Speaker 04:
were the ultimate information for which any of this would be submitted.

[00:27:39] Speaker 04:
So yes, it would be cumulative, but it also would be compound, in effect, or I guess just cumulative.

[00:27:53] Speaker 01:
Essentially, Your Honor, it would have been sufficient to, if the in-service stressor was at issue, it would have been either sufficient.

[00:28:01] Speaker 04:
In effect, it's saying where the agency makes a concession of the existence of a fact, you don't need anything else.

[00:28:08] Speaker 04:
And they've conceded the existence of that fact in 8283.

[00:28:12] Speaker 04:
It was in the operation that those stressors took place.

[00:28:16] Speaker 01:
Essentially, yes, Your Honor.

[00:28:17] Speaker 01:
The issue was the lack of a medical diagnosis.

[00:28:20] Speaker 01:
And just to correct something, when Mr. Carpenter says that there was no diagnosis, to say that there was no diagnosis is inaccurate.

[00:28:29] Speaker 01:
There is only one diagnosis, and that's, as DeGiorgina pointed out, finding personality disorder, no PTSD.

[00:28:36] Speaker 01:
There was a letter from a counselor at a veteran's center that suggested that Mr. Kaiser has symptoms that have been associated with PTSD.

[00:28:44] Speaker 01:
And based on that, he was offered, he had a medical exam, and the medical examiner took that into account and took into account his testimony about being in Operation Harvest Moon, coming under an ambush, seeing casualties.

[00:28:58] Speaker 01:
All of that was there.

[00:28:59] Speaker 01:
The only thing that was lacking was a medical diagnosis.

[00:29:02] Speaker 01:
This was the same case as in Blue Bomb.

[00:29:05] Speaker 02:
When the PTSD claim was granted later, I think 2006, correct?

[00:29:10] Speaker 02:
Yes, 2007.

[00:29:11] Speaker 02:
2007.

[00:29:13] Speaker 02:
It's my understanding that this information we're talking about was part of that record and was considered when the PTSD claim was granted.

[00:29:21] Speaker 01:
There were two things that were considered, Your Honor, when the PTSD claim was granted.

[00:29:25] Speaker 01:
The first, as Judge Schall pointed out, is a new medical diagnosis, diagnosing him with PTSD based on his symptoms.

[00:29:32] Speaker 01:
And that was lacking in 83.

[00:29:33] Speaker 01:
The other information... What was lacking?

[00:29:36] Speaker 02:
The symptoms?

[00:29:37] Speaker 01:
The diagnosis based on the symptoms, yes.

[00:29:39] Speaker 01:
The medical examiner examined Mr. Kaiser in 1983 and concluded that his symptoms were not PTSD.

[00:29:46] Speaker 02:
But in 2007, they did look at this material.

[00:29:50] Speaker 01:
It was made part of the record.

[00:29:51] Speaker 01:
When you say this material, I want to be made.

[00:29:53] Speaker 02:
Well, this information that we're dealing with today, whether it's relevant or not.

[00:29:57] Speaker 01:
Yes, but he also had an additional medical exam.

[00:30:00] Speaker 01:
He had a new exam that concluded that he had PTSD.

[00:30:04] Speaker 01:
So it wasn't solely a record review in 2007 that went back and granted it.

[00:30:08] Speaker 01:
There was a medical diagnosis.

[00:30:09] Speaker 01:
There was a new medical diagnosis that was absent.

[00:30:12] Speaker 02:
But that medical diagnosis, did it include the examiner looking at this material?

[00:30:18] Speaker 02:
and reciting it as part of the diagnosis?

[00:30:21] Speaker 01:
No.

[00:30:22] Speaker 01:
The examiner looked at the symptoms.

[00:30:26] Speaker 01:
Because he had a medical diagnosis, then the agency looked at an in-service stressor, and it looked at his combat.

[00:30:32] Speaker 02:
That's what I mean.

[00:30:32] Speaker 02:
So when looking at the stressor, was this material considered?

[00:30:35] Speaker 02:
It seems like it was.

[00:30:38] Speaker 02:
I mean, there's discussion of the metals that he had.

[00:30:41] Speaker 01:
Yes, Your Honor.

[00:30:42] Speaker 01:
That was, but that was considered for the in-service stressor.

[00:30:45] Speaker 01:
There's no indication that that...

[00:30:48] Speaker 01:
We have to be careful not to conflate the medical diagnosis based on symptoms and an in-service stressor.

[00:30:53] Speaker 01:
Let me ask you this.

[00:30:55] Speaker 04:
It seems to me that there was somewhat of a philosophical change at the VA between 1982 and the middle of the last decade, and that that change favored

[00:31:16] Speaker 04:
a more likely finding of PTSD among veterans.

[00:31:21] Speaker 04:
Am I correct in that?

[00:31:23] Speaker 04:
And it may have involved legislative action as well.

[00:31:28] Speaker 04:
I don't know.

[00:31:30] Speaker 01:
I'm not aware of any legislative action.

[00:31:33] Speaker 01:
And I'm not aware of any official change.

[00:31:36] Speaker 01:
Certainly information and medical knowledge evolves over time.

[00:31:40] Speaker 01:
And medical knowledge in 1983 may have been different than 2007.

[00:31:46] Speaker 01:
symptoms develop over time as well, so Mr. Carstener, that is not clear on this record.

[00:31:54] Speaker 01:
There are no further questions we respectfully ask.

[00:31:56] Speaker 02:
We thank you.

[00:31:58] Speaker 02:
Mr. Carstener?

[00:32:03] Speaker 02:
You've got two minutes and 14 seconds.

[00:32:07] Speaker 02:
Thank you, Your Honor.

[00:32:09] Speaker 03:
I stumbled on the earlier part of my argument with the description of this regulation as remedial.

[00:32:16] Speaker 03:
For some reason, that word would not come to me.

[00:32:19] Speaker 03:
This is a remedial regulation.

[00:32:22] Speaker 03:
It is intended to benefit the veteran.

[00:32:24] Speaker 03:
The interpretation relied upon by the board does not benefit the veteran.

[00:32:29] Speaker 03:
The interpretation relied upon by the Veterans Court

[00:32:32] Speaker 03:
did not benefit the veteran.

[00:32:35] Speaker 03:
Let's go over the underlying facts again and what this regulation is intended to look at.

[00:32:41] Speaker 03:
It's intended to look at the original claim.

[00:32:43] Speaker 03:
There is no dispute in this record that the initial claim was for post-traumatic stress disorder.

[00:32:50] Speaker 03:
In support of that, this veteran was going to a VA vet center.

[00:32:55] Speaker 03:
He got a letter from a VA counselor at that facility

[00:33:01] Speaker 03:
that specifically referenced post-traumatic stress disorder.

[00:33:04] Speaker 03:
It's at Appendix 17.

[00:33:06] Speaker 03:
There was a subsequent C&P examination with an addendum in 1983.

[00:33:10] Speaker 03:
That examination gave a diagnosis of intermittent explosive disorder.

[00:33:16] Speaker 03:
To go to your question, Judge Wallach, there was a considerable shift in the understanding of post-traumatic stress disorder, not just institutionally by the VA, but by the American Psychiatric Association.

[00:33:31] Speaker 03:
This diagnosis was originally accepted in the early 1980s, commensurate with the time of this original diagnosis.

[00:33:38] Speaker 03:
At that time, there were much higher requirements for a diagnosis for post-traumatic stress disorder that existed, and DSM has changed at least three times since that occurred in the 1980s.

[00:33:52] Speaker 03:
It is a much more, if you will, liberal

[00:33:58] Speaker 03:
view of when a person does or doesn't suffer from post-traumatic stress disorder.

[00:34:03] Speaker 03:
The importance of 3.156C is the opportunity for the veteran to have the VA reconsider based upon the totality of the record as it existed after the VA received service records that existed and were relevant and were part of the decision-making process that made the award.

[00:34:24] Speaker 03:
Those are the undisputed facts in this case, and that's how this regulation should be interpreted to have the remedial effect of this regulation for the benefit of veterans.

[00:34:35] Speaker 03:
Thank you very much.