[00:00:32] Speaker 03:
Okay, the next argued case is number 16, 1382, Lloyd again.

[00:00:44] Speaker 00:
May I please the court?

[00:00:45] Speaker 00:
Cass Carpenter appearing on behalf of Bonnie Deloitte, the veteran in this case.

[00:00:49] Speaker 06:
Before I begin... Let me clarify just one point, Mr. Carpenter, before we get started.

[00:00:53] Speaker 06:
In both in your arguments to the CAVC and your main blue brief here, you make an argument based on a reading decision in June 2002.

[00:01:11] Speaker 00:
Actually, I believe it's October of 2002.

[00:01:13] Speaker 06:
No, you look at page 9 in your brief.

[00:01:21] Speaker 06:
All made after the VA's June 6, 2002 rating decision.

[00:01:28] Speaker 06:
Third line from the bottom.

[00:01:33] Speaker 06:
In the CAV, you made this argument below.

[00:01:37] Speaker 06:
Basically, your client couldn't have had any obligation to supply something because the rating decision was made before he was asked for any information.

[00:01:44] Speaker 00:
Yes.

[00:01:45] Speaker 06:
And that's wrong, correct?

[00:01:47] Speaker 06:
I mean, there was no rating decision in June.

[00:01:51] Speaker 00:
No, the rating decision was in October.

[00:01:53] Speaker 06:
Well, if you look at the third line from the bottom on page 9, what does it refer to?

[00:01:58] Speaker 01:
Yes, it does say June, Your Honor, and that's not correct.

[00:02:02] Speaker 06:
And you made a legal argument based on the fact that there was a June 6, 2002 rating.

[00:02:12] Speaker 06:
Look at your brief.

[00:02:14] Speaker 06:
Look at the bottom of page 9 of your brief.

[00:02:16] Speaker 06:
That's one of your three arguments.

[00:02:19] Speaker 06:
Yes, Your Honor, but at page 1... I'm trying to point out to the presiding judges that Mr. Carpenter made an argument below

[00:02:26] Speaker 06:
based on a misstatement of the record, he was corrected by the CAVC in its opinion, and yet you maintain the same argument in your blibbering here.

[00:02:37] Speaker 06:
I had to call for the whole record from the CAVC to determine that there was no such thing as a January 6, 2002 written discussion.

[00:02:46] Speaker 01:
Your Honor, I believe in the appendix at page 180, it does refer to the correct date.

[00:02:56] Speaker 01:
in my brief below.

[00:02:57] Speaker 06:
Page 180 of the brief, you refer to a June 6, 2002 rating decision, and you cite... Oh, I'm sorry.

[00:03:08] Speaker 06:
I see it in the upper paragraph.

[00:03:12] Speaker 06:
I got the very pages from the record that you cited, the CBC, and it said it's an October rating decision.

[00:03:19] Speaker 06:
So may I fairly assume that the arguments that you made in your blue brief based on the existence of an October rating decision, you're now waving off.

[00:03:31] Speaker 06:
You made an argument that you see your blue brief.

[00:03:35] Speaker 06:
You made an argument that it was pertinent that you win in this case because there was a rating decision in June.

[00:03:45] Speaker 01:
No, the correct date of the rating decision is October.

[00:03:49] Speaker 06:
What about the argument you make in your blue brick based on the earlier wrong reading decision?

[00:04:03] Speaker 01:
Well, the citation at the end of page nine refers to the

[00:04:09] Speaker 06:
Wrong date, that is correct.

[00:04:12] Speaker 06:
But there never has been a June 6th rating.

[00:04:15] Speaker 00:
No, Your Honor.

[00:04:17] Speaker 06:
But in my reading... You argued to the CABC that there had been a June 6th rating, and they told you you were wrong.

[00:04:28] Speaker 01:
I did get those dates incorrect, Your Honor.

[00:04:32] Speaker 06:
I'm just trying to point out to you, Mr. Carpenter, that you made a legal argument based on the existence of a June 2 rating.

[00:04:39] Speaker 06:
You knew that there was no such thing as a June 2 rating.

[00:04:42] Speaker 01:
Well, I did not intentionally make the argument knowing that it was not correct.

[00:04:47] Speaker 06:
You represented, Mr. Carpenter, to the CAVC in a letter dated November 23, 2011,

[00:04:55] Speaker 06:
that the claim was denied in October, not in June.

[00:04:59] Speaker 00:
That's correct, Your Honor.

[00:05:01] Speaker 06:
And yet you maintain that there was a reading decision denying him in June.

[00:05:07] Speaker 01:
No, and that is a mistake, Your Honor.

[00:05:11] Speaker 01:
That is an incorrect statement.

[00:05:13] Speaker 01:
The decision was October.

[00:05:14] Speaker 06:
But when that was called out to you by the CAVC in its opinion, why did you make the same mistake in your blue brief?

[00:05:22] Speaker 06:
That caused me to have to get the whole record, right?

[00:05:26] Speaker 06:
Because you had a legitimate argument based on the fact that there was a June rating decision.

[00:05:32] Speaker 06:
And it was your lead argument on page nine of your brief.

[00:05:36] Speaker 03:
So it was in October.

[00:05:37] Speaker 03:
Yes.

[00:05:37] Speaker 03:
Can we proceed?

[00:05:40] Speaker 03:
Sure.

[00:05:41] Speaker 03:
You've now rammed it off.

[00:05:43] Speaker 03:
Okay, so we're talking about the October 2002 decision.

[00:05:48] Speaker 01:
As long as we are correcting my mistake, Your Honor, I did make another mistake and that is that I cited or I referred to in my brief at page 6, 8, 9, and 10 to the fact that there was no notice

[00:06:09] Speaker 01:
to Mr. Lloyd by the VA of a request for information.

[00:06:16] Speaker 01:
And that is a misstatement of fact.

[00:06:21] Speaker 01:
Well, if you assume that it applies retroactively, it is a crucial one.

[00:06:26] Speaker 01:
If it does not apply retroactively, then it is not a crucial one.

[00:06:30] Speaker 01:
What was the date of the information request?

[00:06:42] Speaker 01:
October 28, 2002, rating decision that begins at Appendix 30.

[00:06:48] Speaker 01:
At Appendix 31, it notes that on September 16, 2002, the VA had requested additional information and specifically it requested a complete detailed description of the specific traumatic incidents.

[00:07:05] Speaker 04:
Do I understand right that it wasn't until many years later that Mr. Lloyd mentioned, was it Bien Hoa?

[00:07:13] Speaker 04:
That's right.

[00:07:14] Speaker 04:
When did you pronounce it?

[00:07:15] Speaker 00:
Benoit.

[00:07:16] Speaker 04:
But not back in 2000.

[00:07:19] Speaker 04:
No, Your Honor, he did not.

[00:07:21] Speaker 04:
So the situation as I understand it that's presented for decision is whether on the assumption that the new 156C2 doesn't actually apply to this case because that would make it retroactive and at least the Veterans Court did not think it was

[00:07:41] Speaker 04:
retroactive in this case, I gather more recently it seems to have done just the opposite, but in this case it didn't.

[00:07:49] Speaker 04:
Then the question is whether the regulations in place putting aside the amendment to 156C2 were such as to allow the VA to say if we got new service records that change our assessment

[00:08:10] Speaker 04:
It doesn't come within the exception to backdating the opening claim where the reason we didn't get them before was that you didn't answer a question to give us information that was necessary for us to go look for those.

[00:08:27] Speaker 01:
Well, actually, the regulation is not phrased in terms of you did not provide.

[00:08:33] Speaker 01:
It's that you failed.

[00:08:35] Speaker 01:
excuse me, that you did not respond.

[00:08:37] Speaker 04:
I'm ignoring the new 156C2.

[00:08:39] Speaker 04:
I gather the government's argument is ignoring that, nevertheless, under the pre-existing 156, that exception doesn't apply.

[00:08:53] Speaker 04:
didn't apply, maybe because of 159 duty to cooperate.

[00:08:57] Speaker 04:
I think that's the principle basis, but they can explain this more.

[00:09:02] Speaker 04:
Nevertheless, you don't get the benefit of this special exception to the backdating rule if the reason that we couldn't get those service records is that we had no idea what to ask for because you didn't give us the information.

[00:09:15] Speaker 04:
Why is that wrong?

[00:09:17] Speaker 01:
Well, and this case, I believe, is a perfect example, Your Honor.

[00:09:20] Speaker 01:
The VA collected some of the veteran service records, but they didn't collect all of the veteran service records.

[00:09:28] Speaker 04:
The veteran service records that they collected... Do I understand this right?

[00:09:35] Speaker 04:
The new service records that made a difference.

[00:09:39] Speaker 04:
were records that simply said, here's what was going on in Bien Hoa.

[00:09:44] Speaker 01:
And Ben Hoa.

[00:09:45] Speaker 01:
Ben Hoa.

[00:09:46] Speaker 01:
That his unit was subject to mortar and rocket attacks.

[00:09:49] Speaker 01:
That's right.

[00:09:49] Speaker 04:
But all they needed to know was that that was where he was.

[00:09:53] Speaker 04:
And then they looked up in general Vietnam military records.

[00:09:58] Speaker 04:
That's what was happening there then.

[00:10:01] Speaker 01:
Right.

[00:10:01] Speaker 04:
Right.

[00:10:02] Speaker 04:
But they didn't know.

[00:10:03] Speaker 04:
Even though they asked for more information in September of 2002,

[00:10:09] Speaker 04:
They didn't know in October of 2002 that they should even look for those records.

[00:10:14] Speaker 04:
They're not kind of records specific to him.

[00:10:17] Speaker 04:
Just, you tell us where you were at this time, then we can figure out what was happening there then.

[00:10:26] Speaker 01:
Well, Your Honor, I'm not sure it's quite as simple as that.

[00:10:28] Speaker 01:
This has to do with whether or not there was a basis to corroborate the stressor.

[00:10:35] Speaker 01:
That is a provision under 3.304f.

[00:10:39] Speaker 01:
That provision was not considered by the VA in its decision in 2002.

[00:10:44] Speaker 01:
All the VA considered in 2002 was whether or not Mr. Lloyd was or wasn't a combat veteran and said, based upon your service records, you are not in combat.

[00:10:55] Speaker 01:
Your medals don't arise to give you the benefit of the combat presumption.

[00:10:59] Speaker 06:
Maybe he'd been asked for stress or information and he hadn't given it.

[00:11:04] Speaker 01:
That's correct, John.

[00:11:05] Speaker 01:
But the key here is that in 2002, there was no sanction for that failure to provide that was expressly provided.

[00:11:14] Speaker 06:
Your argument is that 159 doesn't have a sanction.

[00:11:18] Speaker 01:
That's correct.

[00:11:20] Speaker 06:
And the government is arguing and citing in the CABC cited a couple of cases in which the veteran's failure to give sufficient information to find something was taxed against him.

[00:11:32] Speaker 00:
Yes.

[00:11:33] Speaker 06:
In those cases.

[00:11:35] Speaker 06:
And so that's the penalty.

[00:11:39] Speaker 06:
Those cases demonstrate the penalty for failure to comply with 159.

[00:11:45] Speaker 01:
And the imposition of a penalty by inference

[00:11:50] Speaker 01:
which is what the government is trying to do in retrospect.

[00:11:54] Speaker 06:
The cases that were cited say, the cases that were cited in the SABC and cited in the government's brief.

[00:12:00] Speaker 01:
Right.

[00:12:01] Speaker 01:
And those cases, we believe, are inconsistent with the plain language of 3.156C, the prior version, that made no such reference.

[00:12:12] Speaker 06:
Inconsistent with or providing the same kind of remedy that 156C2 does provide?

[00:12:20] Speaker 06:
What are the cases of NKL C2?

[00:12:25] Speaker 06:
156, 156 C2 says that if you didn't give us enough information for us to find what we should have found, then you're not going to get the benefit of the earlier effective date under 156.

[00:12:38] Speaker 06:
And the effect of the two cases that were cited below and cited by the government's briefs are the similar effect happens to the veteran because those cases were comparing the duty to assist on behalf of the secretary compared to what duty the veteran had.

[00:12:54] Speaker 06:
And that presumably the duty the veteran had in those cases was 159 because that was the only extant

[00:13:01] Speaker 06:
expression of any duty to supply specific information.

[00:13:06] Speaker 06:
And in those two cases, the veteran lost, which was the same penalty, which is you don't get the early refectory pay.

[00:13:13] Speaker 06:
So I don't see how they're inconsistent.

[00:13:14] Speaker 01:
Well, I believe they're inconsistent, Your Honor, because 3.156C was created as a remedy, as a remedial regulation, that when the VA failed to do something specifically related to the collection of service department records, where the information was in the service department records, that would have substantiated the claim.

[00:13:38] Speaker 06:
Let me ask the question to you this way, Mr. Covenant.

[00:13:40] Speaker 06:
What we're talking about, led in from Judge Toronto, is what is viewed as the alternative ground of the holding of the CABC.

[00:13:53] Speaker 06:
The government maintains that the CABC did not rely on 156C2.

[00:13:58] Speaker 06:
You disagree with that.

[00:13:59] Speaker 06:
You think they did.

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

[00:14:01] Speaker 06:
So if you're right and they relied on 156C2 and shouldn't have, then their decision can only be sustained if there was an alternative ground, right?

[00:14:11] Speaker 06:
The alternative ground would be this thing that Judge Tarano referred to.

[00:14:16] Speaker 06:
What I'm trying to get at is the so-called alternative ground.

[00:14:19] Speaker 00:
Yes.

[00:14:21] Speaker 06:
That is to say the veterans' pre-56C2 obligation to help and didn't do it.

[00:14:27] Speaker 06:
That was neither briefed nor argued at the BVA or at the CABC.

[00:14:34] Speaker 01:
The alternative argument.

[00:14:36] Speaker 01:
Yes.

[00:14:36] Speaker 01:
Yes.

[00:14:36] Speaker 06:
It was not raised at all.

[00:14:39] Speaker 06:
No.

[00:14:40] Speaker 06:
And it is fact-driven, isn't it not?

[00:14:45] Speaker 06:
I mean, if you assume there was some kind of an obligation on behalf of the veteran to do something, even though maybe there was no penalty for not doing it, it's fact-driven.

[00:14:55] Speaker 06:
Why should the CAVC get off making those subcellennial fact findings in the first instance?

[00:15:03] Speaker 06:
Why shouldn't the case go back to the BVA and say, hey, wait a second,

[00:15:08] Speaker 06:
You, the BVA, applied 156C2 clear as a bell and shouldn't have.

[00:15:15] Speaker 06:
A. And B, maybe there's an alternative here, maybe there's not, adjudicated.

[00:15:21] Speaker 01:
I think that's reasonable, Your Honor.

[00:15:24] Speaker 01:
Frankly, it did not occur to me to look at it quite through that prism, but I think looking at it from that perspective,

[00:15:31] Speaker 01:
if you're going to rely upon that alternative theory, then there has to be a decision about those facts in the first instance.

[00:15:41] Speaker 01:
And I do not believe that there was any such factual determination made by the board.

[00:15:47] Speaker 06:
It seems to me that it's unclear exactly where the argument was made in the case that the CDC held.

[00:15:54] Speaker 06:
That 156C2 is not retroactive, at least as to pending claims.

[00:16:00] Speaker 06:
There's a debate about whether or not this was a new regulation or whether it's codified existing practice.

[00:16:06] Speaker 06:
And there seems to be some difference of opinion on that topic, and I couldn't get to the bottom of it.

[00:16:18] Speaker 01:
As a practitioner in this area, I was unaware

[00:16:23] Speaker 01:
under the prior version that there were these policies.

[00:16:28] Speaker 01:
These policies were not clarified until 2005 when the VA published and explained that it needed to, if you will, tinker with the wording and substantially expand this regulation into multiple subsections so that the wording of the intent was clear.

[00:16:51] Speaker 01:
And what seems to be clear from that intent is that they wish this to be a remedial action.

[00:16:58] Speaker 01:
That if the veteran was, the original adjudication suffered from an administrative error in the failure to get the service records, then that error should entitle to reconsideration.

[00:17:16] Speaker 06:
And if so, effective date as the original filing.

[00:17:20] Speaker 06:
But if the veteran had not given the secretary sufficient information for it to, in essence, cure the mistake of the record not being filled, then there's a tax to the veteran.

[00:17:31] Speaker 06:
Correct.

[00:17:33] Speaker 04:
The language of failure and remedial, I guess that language feels to me like it

[00:17:41] Speaker 04:
more helps the government than it helps you.

[00:17:43] Speaker 04:
The point of this special exception to the usual effective date rule for reopening or something like that is that these records were already in the possession of the government, properly defined, and that if you call that

[00:18:03] Speaker 04:
then they somehow should have gotten them.

[00:18:05] Speaker 04:
And so the remedy is, okay, you get to backdate your claim.

[00:18:09] Speaker 04:
But if you're in a circumstance where it can't meaningfully be said that the VA failed to find something because there was just, go find a needle in a haystack instruction despite a request for identification of the stressor.

[00:18:30] Speaker 04:
That doesn't feel like a failure to me or a remedy for a failure to give the backdating.

[00:18:36] Speaker 01:
Well, and I think that's where the explanation in the

[00:18:42] Speaker 01:
Federal Register of why they did this becomes crucial to this ultimate determination.

[00:18:48] Speaker 04:
Maybe I missed something.

[00:18:49] Speaker 04:
In both the notice of proposed rulemaking and in the rulemaking, I guess I thought it was not terribly clear whether the VA thought that it was, or I guess we don't say VBA anymore, right, VA thought that it was

[00:19:05] Speaker 04:
putting into words in the CFR something that already pretty much existed or whether it was changing a pre-existing provision that was too veteran-friendly.

[00:19:22] Speaker 04:
by giving the benefit of backdating even if it was the veterans fault for the failure to find, or the non-finding of the earlier records.

[00:19:32] Speaker 04:
Is there anything more that we know beyond what's in the Federal Register about whether 156C2 was

[00:19:40] Speaker 04:
codifying a pre-existing practice or whether it was meant to change a pre-cut practice.

[00:19:48] Speaker 01:
The only thing that I'm aware of is what was in the Federal Register when they proposed to enact it.

[00:19:55] Speaker 06:
The purpose of this rule is to clarify long-standing VA rules.

[00:20:01] Speaker 01:
But unfortunately it doesn't identify what those long-standing rules were, and particularly when you compare it to the language of the prior version.

[00:20:09] Speaker 01:
For example, in the prior version it said either before or after the decision.

[00:20:15] Speaker 06:
Mr. Carpenter, the government at the end of its brief here says there's an independent ground on which your client can't prevail.

[00:20:24] Speaker 01:
I'm sorry?

[00:20:24] Speaker 06:
The government at the tag end of its red brief here says there is an alternative ground on which your client cannot prevail, which is to say your client's diagnosis of PTSD comes at a later date and that you can't get an effective date earlier than your diagnosis.

[00:20:45] Speaker 06:
And that's the case law.

[00:20:47] Speaker 06:
The case law says quite clearly that you can't validate that you gave earlier than your diagnosis.

[00:20:52] Speaker 01:
No, there is a case that addresses that specific question under the facts of that particular case based upon the way in which that issue was presented.

[00:21:02] Speaker 01:
The difference here is... What case is that?

[00:21:05] Speaker 04:
Young.

[00:21:06] Speaker 01:
Young, yes.

[00:21:07] Speaker 01:
Thank you.

[00:21:08] Speaker 01:
I started to say blue ball, but it's not, it's young.

[00:21:11] Speaker 01:
And to your point, Judge Taranto, it is critical to understand that you don't get an earlier effective date.

[00:21:21] Speaker 01:
You merely get the reconsideration of your original claim, which means that it has to be re-adjudicated.

[00:21:29] Speaker 01:
It has to be decided anew based upon what is now in the record.

[00:21:35] Speaker 01:
And that then goes to Judge Clevenger's point about the question of diagnosis and the question of the VA's duty to assist in developing evidence about that diagnosis.

[00:21:46] Speaker 01:
One of the criticisms in this case is that no examination was ordered.

[00:21:52] Speaker 01:
The VA made no effort to determine whether or not, at the time of the 2002 decision, Mr. Lloyd did or did not suffer from post-traumatic stress disorder.

[00:22:04] Speaker 06:
Therefore, he needs to be... You would argue that was a failure of the duty to assist to give the exam at that point in time.

[00:22:11] Speaker 06:
That's correct.

[00:22:12] Speaker 06:
But this is not a duty to assist case.

[00:22:15] Speaker 06:
It's not being pitched as a failure of the duty of the secretary's duty to assist.

[00:22:19] Speaker 01:
No, but the secretaries hail Mary at the end of their brief for a harmless error claim

[00:22:26] Speaker 01:
is not supported by the fact that what you do under this regulation is you reconsider the original claim.

[00:22:36] Speaker 01:
You consider it anew based upon evidence that is now in the record which could include presenting evidence for a retrospective evaluation

[00:22:46] Speaker 01:
to determine whether or not the veteran did or did not have symptoms and manifestations of post-traumatic stress disorder at the time of his original claim up until the current effectiveness.

[00:22:57] Speaker 06:
Connected to the stressor.

[00:22:59] Speaker 06:
In order for your client to prevail, your client will have to show that the stressor is connected to the PTSD.

[00:23:10] Speaker 06:
that he has PTSD because of stressor from these particular facts.

[00:23:15] Speaker 06:
And he had them as of the effective date.

[00:23:19] Speaker 01:
I'm not sure that's correct, Your Honor.

[00:23:20] Speaker 01:
I think your statement is overly broad.

[00:23:23] Speaker 06:
If you take your case and line it up and say, what happens if you have another hearing?

[00:23:30] Speaker 06:
Your client wants to be able to, he has to establish, right, that his PTSD stressor-related is connected to the effective date he's seeking.

[00:23:41] Speaker 01:
With respect, Your Honor, he has to be given the opportunity for reconsideration first.

[00:23:46] Speaker 06:
And I submitted... What I'm trying to get at is, if he got reconsideration, what would you show in order to get entitlement to the earlier effective date?

[00:23:55] Speaker 01:
We would present lay evidence of his symptoms and manifestation between the date of his claim in, I believe, July of 2002 and the date of his current effective date.

[00:24:07] Speaker 01:
that establishment of the relationship of the stressor to the PTSD has already been conceded by the government in its 2007, I believe, decision in which they made the grant based upon the Supplemental Service Department records concerning the rocket and mortar attacks at Benoit.

[00:24:26] Speaker 03:
So on that 2007 decision, would you prevail

[00:24:31] Speaker 03:
if it were enough to show that there was a failure of the duty to assist in 2002?

[00:24:37] Speaker 03:
Is that enough?

[00:24:41] Speaker 01:
Well, yes, Your Honor, because then he would be entitled to present the evidence or require the VA to develop the evidence, i.e.

[00:24:51] Speaker 01:
to obtain an examination retrospectively about what his symptoms and manifestations were or were not

[00:24:59] Speaker 01:
from the time of his claim in July of 2002 until the current effective date.

[00:25:03] Speaker 03:
Okay, so let's hear from the government, and we'll save you a rebuttal, Mr. Carpenter.

[00:25:07] Speaker ?:
Thank you.

[00:25:11] Speaker 03:
Ms.

[00:25:11] Speaker 03:
Walker.

[00:25:12] Speaker 02:
Good morning.

[00:25:14] Speaker 02:
May I please the court?

[00:25:15] Speaker 02:
This court should affirm the decision of the Veterans Court.

[00:25:18] Speaker 03:
I'm sorry, Ms.

[00:25:18] Speaker 03:
Edler.

[00:25:21] Speaker 03:
Okay, start again.

[00:25:23] Speaker 02:
May I please the court?

[00:25:24] Speaker 02:
His court should affirm the decision of the Veterans Court.

[00:25:27] Speaker 02:
Mr. Lloyd should not benefit from his repeated failures to participate in the claims process.

[00:25:32] Speaker 02:
As the Veterans Court correctly held, Mr. Lloyd, as the claimant, had a responsibility to present and support his claim under 38 USC 5107A.

[00:25:43] Speaker 02:
And particularly in PTSD claims, under 38 CFR 3.340F,

[00:25:51] Speaker 02:
the veteran must submit credible evidence showing that his claimed in-service stressor occurred.

[00:25:57] Speaker 02:
He must claim an in-service stressor.

[00:26:00] Speaker 02:
In addition, under 38 CFR 3.159C2, the veteran must provide sufficient information for the records custodian to conduct a search of the cooperative records.

[00:26:13] Speaker 03:
That's where we get to the duty to assist.

[00:26:17] Speaker 03:
The information apparently was not provided.

[00:26:21] Speaker 03:
Everyone knew it was the VA, knew that that was needed, and there was no examination ordered.

[00:26:30] Speaker 02:
Here, Your Honor, are two points on that.

[00:26:32] Speaker 02:
First, Mr. Lloyd has waived any kind of duty to assist argument relating to his original 2002 claim.

[00:26:39] Speaker 02:
That claim is final.

[00:26:40] Speaker 02:
There was no appeal.

[00:26:42] Speaker 02:
Any kind of duty to assist argument should have been raised then, because it was not, has been waived.

[00:26:47] Speaker 02:
But second, the regulations specifically provide that the veteran is supposed to identify the stressor first before he's given a medical exam and before the VA can then go search for records to corroborate the stressor.

[00:27:00] Speaker 06:
Can I back you up?

[00:27:01] Speaker 06:
I mean, you cited 5107A duty and you cited 159C2, which are the legal data points for your argument that he had the obligation to respond more fully.

[00:27:13] Speaker 06:
Mr. Carpenter's argument is that there's no penalty.

[00:27:16] Speaker 06:
He says there's nothing in the law that says what happens if the veteran doesn't satisfy his 159C2 obligation.

[00:27:24] Speaker 02:
I think the clear penalty is that he's not given benefits.

[00:27:27] Speaker 06:
Is there a case?

[00:27:30] Speaker 06:
I went under 159C2 looking for cases.

[00:27:34] Speaker 06:
I couldn't find any cases that said that.

[00:27:36] Speaker 06:
Can you give me an example of where a veteran has lost the claim he's trying to achieve pre-156C2?

[00:27:46] Speaker 02:
Certainly, the 3.304f, which provides the three elements that a claimant must meet to get an award for service connection for PTSD, if they don't meet any of those criteria, then they're not going to get a claim for benefits.

[00:28:02] Speaker 02:
And here, one of those criteria is a claim in-service stressor and credible evidence supporting that claim in-service stressor.

[00:28:09] Speaker 06:
He has the claim that the department now agrees that he has a stressor that is legit and it's connected to his PTSD.

[00:28:18] Speaker 06:
In fact, he's receiving benefits.

[00:28:20] Speaker 06:
This is an earlier effective date case.

[00:28:24] Speaker 06:
And Mr. Cartmere wants to use the regulation that was promulgated that creates an exception of the rule that you don't normally get to go back, which you do when there was a record the government could have copped.

[00:28:35] Speaker 06:
And he's saying he can't be charged with stumbling over 156C2.

[00:28:41] Speaker 06:
Do you agree with that?

[00:28:42] Speaker 06:
156C2 cannot be applied to his case?

[00:28:46] Speaker 02:
No, Your Honor.

[00:28:47] Speaker 02:
Actually, 156C2 can be applied to his case.

[00:28:51] Speaker 02:
Did you argue that in your red brief?

[00:28:55] Speaker 02:
We didn't.

[00:28:56] Speaker 02:
He raised the idea of retroactivity in his reply brief.

[00:29:00] Speaker 04:
So first of all, that argument was waived because it wasn't in his... But the Veterans Court agreed that 156C2 was not retroactive.

[00:29:09] Speaker 04:
He doesn't need to raise that argument.

[00:29:11] Speaker 04:
You could have argued in response that the judgment of the Veterans Court is correct, though not on the ground that the Veterans Court

[00:29:20] Speaker 04:
stated, namely, you could have said 156C2 really is retroactive.

[00:29:26] Speaker 02:
Arguably, yes, Your Honor, we could have done that.

[00:29:28] Speaker 02:
The Veterans Court specifically noted in its opinion that Mr. Lloyd was not arguing about the retroactivity of the statute, of the regulation, and so it did not specifically reach that argument as well.

[00:29:42] Speaker 06:
Stated in its opinion, however, that the Court had held that the regulation was not retroactive.

[00:29:48] Speaker 06:
There's a sentence in the opinion that says that.

[00:29:52] Speaker 02:
Right, the veterans court house.

[00:29:55] Speaker 06:
And your argument below was that the regulation did apply and was not retroactive.

[00:30:02] Speaker 02:
Yes, Your Honor, that was our argument.

[00:30:04] Speaker 06:
And you have not made that argument here.

[00:30:06] Speaker 02:
We did not make it in our briefs.

[00:30:08] Speaker 06:
And so my question is, why aren't we bound to agree with the CAVC, which is held that the regulation is not retroactive?

[00:30:17] Speaker 02:
The regulation's not retroactive here because the regulation was amended, it was not having that retroactive application here, excuse me, because the regulation was amended in 2006 and Mr. Lloyd filed his, the present application to reopen in 2008.

[00:30:34] Speaker 06:
And this court is- We're arguing that his claim wasn't pending at the time the regulation was enacted.

[00:30:40] Speaker 06:
That's correct.

[00:30:41] Speaker 06:
And that's the argument that you made below that the CAVC didn't even pay attention to.

[00:30:46] Speaker 02:
They didn't really need to.

[00:30:48] Speaker 02:
They said that he always had the duty to present and support his claim.

[00:30:53] Speaker 02:
So they didn't really need to reach that argument.

[00:30:55] Speaker 06:
What was the basis for the CABC decision?

[00:30:59] Speaker 02:
The basis for the decision was that Mr. Lloyd had the responsibility to present and support his claim under 51 or 7A, and he failed to do so.

[00:31:12] Speaker 06:
Under 159, you mean?

[00:31:16] Speaker 02:
Under the statute, under 38 USC.

[00:31:18] Speaker 06:
They didn't cite the statute, though.

[00:31:20] Speaker 06:
They cited two cases.

[00:31:21] Speaker 02:
I believe they did cite the statute, Your Honor.

[00:31:23] Speaker 04:
This is all on the crucial page four that you cite repeatedly.

[00:31:30] Speaker 04:
I realize there aren't that many pages.

[00:31:32] Speaker 02:
There aren't that many pages, yes.

[00:31:34] Speaker 02:
It is on Appendix 4.

[00:31:36] Speaker 02:
Yes.

[00:31:37] Speaker 02:
He, the, there is more.

[00:31:40] Speaker 06:
It's 151.7, I correct myself.

[00:31:43] Speaker 06:
So under the case law, this question of whether or not a veteran has satisfied the veteran's obligation to help comes up in duty to assist cases when it's been measured back and forth.

[00:31:59] Speaker 06:
This particular alternative ground that you just mentioned was not briefed or argued to the CABC, correct?

[00:32:06] Speaker 02:
The duty, yes, correct.

[00:32:07] Speaker 06:
Yes, this alternative rule.

[00:32:09] Speaker 06:
Yes.

[00:32:09] Speaker 06:
It was not the, and am I correct that the BVA in this case clearly applied 156C2?

[00:32:16] Speaker 06:
Yes.

[00:32:17] Speaker 06:
And that was a mistake if the statute, if it's not retroactive.

[00:32:22] Speaker 02:
If there is the holding that the statute should not be applied to conduct that happens.

[00:32:28] Speaker 06:
To reopen claims.

[00:32:29] Speaker 02:
Correct, but I would note that this court has held that reopen claims are treated as new claims.

[00:32:35] Speaker 02:
And therefore, that's Cook in 2002 and then Simms versus Shinseki, which is a 2009 decision.

[00:32:42] Speaker 02:
And because they should be treated as new claims, the regulations that are in effect at the time the individual files a new claim should govern the result of the

[00:32:52] Speaker 06:
Are you familiar with the case law at the CABC?

[00:32:55] Speaker 06:
Since this case, dealing with the question of whether or not 56C2 is retroactive, and if so, to what?

[00:33:03] Speaker 02:
I am not.

[00:33:05] Speaker 06:
So you don't know what the practice is at the CABC, whether they've bought your argument that you made below in this case, but didn't make you.

[00:33:13] Speaker 02:
I don't know since this case, Your Honor.

[00:33:15] Speaker 02:
I know that the one, there's Klein versus Shinseki below, which we briefed in our brief below before the CAVC.

[00:33:23] Speaker 06:
Should I be troubled that the CAVC made a decision based on an issue that wasn't briefed or argued to it, and it wasn't briefed or argued to the BVA?

[00:33:33] Speaker 02:
No, Your Honor, because the facts of the matter are the same regardless.

[00:33:37] Speaker 02:
The court didn't do any new fact-binding or anything like that in order to reach this alternative ground.

[00:33:42] Speaker 02:
They relied on the same facts, which is very simply that Mr. Lloyd did not identify a stressor until 2008.

[00:33:49] Speaker 06:
So therefore, they were simply applying... But what you're trying to do is to measure what his duty was at the time that the VA was asking for information from him.

[00:34:01] Speaker 06:
And part of his contention is that you were asking for information from me after you denied me a medical exam.

[00:34:09] Speaker 06:
So his view is that in the mix, that the fact that he was denied a medical exam somehow diminishes the significance of his failure to give the specific information.

[00:34:22] Speaker 06:
The secretary missed the chance to pick up something more to tell him more about what it is he should be giving.

[00:34:29] Speaker 02:
It doesn't, Your Honor.

[00:34:29] Speaker 02:
Again, that argument's been waived.

[00:34:31] Speaker 02:
That's a duty to assist claim.

[00:34:32] Speaker 02:
But even if it hadn't, he's not entitled to a medical exam until he identifies as stressor.

[00:34:37] Speaker 02:
And that's what this court said in Sanchez Navarro.

[00:34:40] Speaker 06:
I'm not certain what the law was in 2002.

[00:34:44] Speaker 06:
Navarro, I don't know for sure whether the secretary was refusing to give medical exams in PTSD cases unless there were stressor evidence in 2002.

[00:34:57] Speaker 06:
Do you know the answer to that?

[00:34:58] Speaker 02:
I don't know the answer to that, Your Honor.

[00:34:59] Speaker 06:
And it would be material, would it not, if there was going to be another hearing?

[00:35:04] Speaker 02:
If this case was remanded and for him to have a new medical exam, it would not be material.

[00:35:13] Speaker 06:
It would not actually change the outcome of this case, because even if this case... The first argument would be, first off, to decide whether or not 156C2 is or is not retroactive to this case.

[00:35:27] Speaker 06:
which isn't being adjudicated here because it hasn't been briefed.

[00:35:31] Speaker 06:
Because if it is not retroactive, that's one answer.

[00:35:35] Speaker 06:
If it is retroactive, Mr. Cartman's client's gonna lose.

[00:35:38] Speaker 06:
If it's not retroactive, then the question is, well, how do you measure up what the size of his obligation under 159 and 1507, what was the size of his obligation

[00:35:52] Speaker 06:
in 2002, in the summer of 2002.

[00:35:56] Speaker 02:
He always had the obligation to identify his claim stressor.

[00:36:00] Speaker 02:
Always.

[00:36:01] Speaker 02:
Under 3.304F.

[00:36:03] Speaker 02:
Those are the three elements for a PTSD claim.

[00:36:05] Speaker 02:
And he always had the obligation to identify his stressor.

[00:36:09] Speaker 02:
He failed to do that until 2008.

[00:36:12] Speaker 02:
So even if this case was sent back, even if he got the medical exam, even if the doctor then said, yes, Mr. Lloyd had PTSD, arguably he could go back to 2002, the result, the ultimate outcome of this case, the effective date he wants back to 2002, would not happen.

[00:36:30] Speaker 02:
Because the effective date is the later of the date the original claim was filed if it's been reconsidered.

[00:36:37] Speaker 02:
as he's asking for, and the date the entitlement arose.

[00:36:40] Speaker 02:
The entitlement for Mr. Lloyd didn't arise

[00:36:44] Speaker 02:
at least until 2006 until he was given the exam and arguably until 2008 when he actually identified the stressor.

[00:36:52] Speaker 06:
What happens if in an additional hearing Mr. Carpenter is able to produce for his client a statement by a VA doctor that he has analyzed the record here and he's analyzed what were the stated conditions

[00:37:08] Speaker 06:
of his client at an earlier period of time, and to say, I believe that you suffered these events in service, that they were a stressor for the PTSD you have now, and you had those at an earlier time.

[00:37:22] Speaker 06:
I believe that your PTSD stressor-related was existing at the time you filed your claim in 2002.

[00:37:29] Speaker 06:
And he produced that, and that's all as a result of not having been

[00:37:37] Speaker 06:
156C2.

[00:37:40] Speaker 06:
Why wouldn't he then under 156A get his earlier effective data as the date of the final one?

[00:37:47] Speaker 02:
Because his date of entitlement would still be the date when all those three elements were met under 38CFR 3.04.

[00:37:53] Speaker 06:
He's asking for a retroactive

[00:37:59] Speaker 06:
if you will, diagnosis of PTSD, stressor related.

[00:38:03] Speaker 02:
Yes.

[00:38:03] Speaker 06:
Back to the date of the day he filed his claim.

[00:38:05] Speaker 02:
Yes, but he still hasn't claimed his stressor until 2008.

[00:38:08] Speaker 02:
And that is one of the elements of the PTSD service connection.

[00:38:13] Speaker 03:
PTSD, you're saying, was not claimed in 2002?

[00:38:16] Speaker 02:
He claimed that he had PTSD.

[00:38:18] Speaker 02:
He didn't identify his stressor.

[00:38:19] Speaker 03:
And that is one of the elements of... Where are the presumptions here?

[00:38:23] Speaker 03:
Here we have a veteran.

[00:38:25] Speaker 03:
three years in the military, including service in Vietnam, and then some years later files a claim for certain consequences of that service.

[00:38:38] Speaker 03:
The question which arises, in fact, whether this isn't after it comes out with time, apparently the symptoms are

[00:38:50] Speaker 03:
manifested or enlarged, I can't tell yet from the record before us, but several years later the question is reopened with a VA.

[00:39:01] Speaker 03:
So it obviously didn't go away.

[00:39:04] Speaker 03:
And where, at what stage, after we work our way through the addition of additional regulations, which we are told reflect some sort of prior practice, which is now being

[00:39:19] Speaker 03:
elaborated or exposed or the consequences perhaps throughout those who served in that period are becoming more manifest.

[00:39:29] Speaker 03:
I'm looking for some kind of presumption which might impose some sort of burden to elaborate at a stage when if all was needed was invite the military to see what happened.

[00:39:46] Speaker 03:
in that period of service in Vietnam, certainly it was all over the press and everything else.

[00:39:55] Speaker 03:
Where do the burdens lie now that we have eventually crossed a lot of bridges, determined that there was indeed, there is indeed PTSD, there is indeed a certain retroactivity, and we're just trying to figure out what's fair in light of

[00:40:14] Speaker 03:
the complications, the complexities of all of these actions.

[00:40:20] Speaker 03:
And this is where it's troubling when there was, in fact, it was brought to the VA's attention in 2002 that there are problems to be resolved.

[00:40:32] Speaker 03:
It takes a long time to resolve them, but what's fair in terms of the threshold?

[00:40:39] Speaker 02:
Your Honor, I came out of time.

[00:40:40] Speaker 02:
May I respond?

[00:40:43] Speaker 02:
Here,

[00:40:44] Speaker 02:
Mr. Lloyd was treated fairly.

[00:40:46] Speaker 02:
The only thing Mr. Lloyd was required to do in 2002 was to tell the Veterans Administration what his stressor was, what event in service is causing him to have flashbacks or symptoms of PTSD.

[00:41:01] Speaker 02:
He didn't do that.

[00:41:02] Speaker 02:
The Veterans Administration repeatedly told him that he needed to do that, and that was his obligation under 3.304F and under the 3.159C.

[00:41:13] Speaker 02:
They sent him a letter.

[00:41:13] Speaker 02:
He filed his claim in June 2002.

[00:41:16] Speaker 02:
They sent him a letter, September 2002, saying, if you don't give us this information, we can't do any more with your claim.

[00:41:24] Speaker 02:
You have to have a diagnosis, which you didn't have then.

[00:41:26] Speaker 02:
But also, you need to tell us what your in-service stressor is.

[00:41:30] Speaker 02:
He didn't do that.

[00:41:31] Speaker 02:
When the regional office denied his claim and that became final, again, the regional office said, you need to give us the information about your stressor.

[00:41:39] Speaker 02:
And he did not do that.

[00:41:40] Speaker 02:
Again, in 2006,

[00:41:43] Speaker 02:
when he filed his first application to reopen the claim and actually had the diagnosis for PTSD, he was told again by the Veterans Administration, you need to tell us what your stressor is.

[00:41:53] Speaker 02:
He didn't do it.

[00:41:54] Speaker 02:
And again, the RO denied his claim saying, again, you didn't tell us what your stressor is.

[00:41:59] Speaker 02:
It only comes back in 2008 when he finally identified his stressor.

[00:42:02] Speaker 02:
And that was what allowed the VA to go and confirm that he did actually suffer.

[00:42:08] Speaker 02:
His unit was in Bien Hoa at the time.

[00:42:12] Speaker 02:
Mr. Lloyd was treated fairly here.

[00:42:15] Speaker 02:
The VA, PTSD is such a personal thing.

[00:42:20] Speaker 02:
One person's experience being subject to rocket and mortar attacks may give them PTSD.

[00:42:26] Speaker 02:
Another person might be totally fine.

[00:42:28] Speaker 02:
That's why VA needs someone, needs the veteran to come on board and say what the stressor is and then the VA can go and cooperate and hear that just did not happen.

[00:42:37] Speaker 03:
Okay, I think that's true.

[00:42:39] Speaker 03:
Thank you, Ms.

[00:42:40] Speaker ?:
Edmure.

[00:42:42] Speaker 01:
It seems to me that the problem for the government is and the problem with the decision below is the lack of authority in any statute or any regulation for sanctioning for the failure to provide this information.

[00:43:04] Speaker 01:
That now exists prospectively in 3.156 C2.

[00:43:11] Speaker 01:
It did not exist in 2002.

[00:43:14] Speaker 01:
The Veterans Court tried to do a workaround and say that, well, under the statute, under 5107, you have to substantiate your claim.

[00:43:27] Speaker 01:
This is not substantiating a claim.

[00:43:29] Speaker 01:
This is not the original adjudication.

[00:43:32] Speaker 01:
This is reconsideration of that original claim.

[00:43:37] Speaker 01:
That is the clear, long-standing policy of the VA in the creation of 3.156C to permit reconsideration when there are service department records that are recovered later that permit an award.

[00:43:53] Speaker 01:
And it allows for reconsideration, which then triggers anew the duty to assist.

[00:44:01] Speaker 01:
What the VA has done, what the court below did, was to say, you don't get the duty to assist here because you didn't substantiate your claim.

[00:44:11] Speaker 01:
We're not arguing that he substantiated his claim in 2002.

[00:44:16] Speaker 01:
He substantiated his claim in 2007 and was granted the benefit.

[00:44:22] Speaker 01:
This regulation then provides for a mechanism for the reconsideration of the original claim.

[00:44:29] Speaker 01:
For those veterans going forward, they are going to have to provide that information or they don't get reconsideration.

[00:44:38] Speaker 01:
For the hundreds if not thousands of veterans who didn't know they had an obligation, it is patently unreasonable to impose retroactively such a sanction without express authority.

[00:44:54] Speaker 01:
The government offered you no authority for a sanction.

[00:44:58] Speaker 01:
There is no sanction authority in the statute.

[00:45:02] Speaker 01:
There is no sanction authority in any VA regulation until we get to this amendment.

[00:45:09] Speaker 03:
But in Mr. Lloyd's case in 2002, he was asked for substantiation.

[00:45:16] Speaker 01:
He was.

[00:45:16] Speaker 03:
Doesn't that distinguish this case?

[00:45:19] Speaker 01:
No, Your Honor, because at that time, the VA correctly denied

[00:45:24] Speaker 01:
not because they didn't have the information to substantiate it.

[00:45:30] Speaker 01:
But let's look at what the VA also didn't do.

[00:45:33] Speaker 01:
They never gave it an exam.

[00:45:35] Speaker 01:
The government gets up here and talks to you about how you're required to corroborate your stressor, the very specific information you're asked for, the stressor, under a specific VA regulation.

[00:45:48] Speaker 01:
And that regulation

[00:45:50] Speaker 01:
could have been applied, but was not.

[00:45:54] Speaker 01:
Only the combat status was considered in 2002.

[00:45:57] Speaker 01:
3.304F was not considered.

[00:46:01] Speaker 01:
If there was an examination, what would the examiner's first question have been?

[00:46:06] Speaker 01:
Why do you think you have PTSD?

[00:46:08] Speaker 01:
What happened in the service?

[00:46:10] Speaker 01:
And where did it happen?

[00:46:12] Speaker 01:
And if the examiner wrote down, well, I was at Benoit during these rocket and mortar attacks,

[00:46:17] Speaker 01:
And he explained it then, not when he was made the request, but during the VA examination.

[00:46:23] Speaker 01:
That's part of the VA's duty to assist.

[00:46:25] Speaker 01:
That then is recorded in the record.

[00:46:28] Speaker 01:
But we're not talking about the original adjudication.

[00:46:31] Speaker 01:
We're talking about a reconsideration of that original claim based upon the VA's receipt of service department records.

[00:46:41] Speaker 01:
The facts are not in dispute here.

[00:46:43] Speaker 01:
The VA got service records after

[00:46:46] Speaker 01:
the denials in 2002 and 2005.

[00:46:52] Speaker 01:
When they got the records in 2007, they ultimately made the award.

[00:46:57] Speaker 01:
This is a regulation that is calculated to assist veterans in getting an opportunity to demonstrate an effective date from the date of the original claim.

[00:47:09] Speaker 01:
And that's what Mr. Lloyd was deprived of.

[00:47:12] Speaker 01:
He was deprived of that by the board,

[00:47:14] Speaker 01:
because they used their now get out of jail free card under this regulation and said you didn't provide us the information.

[00:47:22] Speaker 04:
Can I just ask about this?

[00:47:22] Speaker 04:
Yes.

[00:47:23] Speaker 04:
I'm looking at the, this is joint appendix 31, it's the October 28, 2002, the initial.

[00:47:33] Speaker 01:
At 31?

[00:47:34] Speaker 04:
Yes, at the very bottom of appendix 31.

[00:47:37] Speaker 04:
Yes.

[00:47:37] Speaker 04:
This is the initial 2002 denial.

[00:47:41] Speaker 04:
And the last sentence, which is going

[00:47:44] Speaker 04:
starts on the third line from the bottom and carries over.

[00:47:49] Speaker 04:
We requested medical evidentially treatment for PTSD, along with a complete detailed description of the specific traumatic incidents which produced the stress that resulted in your claim.

[00:48:06] Speaker 04:
And they don't find one.

[00:48:10] Speaker 04:
And the office did not find that established.

[00:48:20] Speaker 01:
Well, there was no response to that request.

[00:48:23] Speaker 01:
That is correct, Your Honor.

[00:48:24] Speaker 03:
But isn't that the problem?

[00:48:26] Speaker 01:
No, Your Honor, because there was no requirement to do that under the provisions of 3.156C as it existed in 2002.

[00:48:34] Speaker 01:
That's all right.

[00:48:36] Speaker 03:
So the federal regulations were not in the forefront of Mr. Lloyd's consciousness, but here is a direct request for exactly what would have solved the problem.

[00:48:45] Speaker 01:
And if there was a statute, Your Honor, or a regulation that said

[00:48:49] Speaker 01:
as the now amended regulation says, if you fail to provide that, then you will not get reconsideration of your claim at a later date, then you're right.

[00:49:02] Speaker 06:
Mr. Lloyd would have to... But there was a regulation that did require him to give specific stress or information.

[00:49:07] Speaker 06:
That's 3.159, correct?

[00:49:10] Speaker 06:
Let's put that on the table.

[00:49:12] Speaker 01:
That's correct, Your Honor.

[00:49:13] Speaker 06:
With no sanctions... No, that regulation was actually

[00:49:17] Speaker 06:
would be the basis for the request was we want you to give us this information.

[00:49:22] Speaker 01:
That would be correct.

[00:49:23] Speaker 06:
Your case hinges on the fact that there was no penalty for the breach of the 3.159 obligation.

[00:49:30] Speaker 01:
That's correct.

[00:49:32] Speaker 06:
I just want to make it clear.

[00:49:33] Speaker 01:
Yes.

[00:49:34] Speaker 01:
And with no penalty provision in that, it is... Well, was it hortatory?

[00:49:39] Speaker 06:
What was the purpose of 3.159?

[00:49:43] Speaker 01:
To allow the denial of a claim, Your Honor.

[00:49:46] Speaker 01:
And that's what happened in 2002.

[00:49:48] Speaker 01:
They denied the claim because he didn't come forward with the information requested.

[00:49:53] Speaker 06:
Well, they didn't need that to deny the claim.

[00:49:55] Speaker 06:
He didn't give the information and it wouldn't have satisfied the requirement for the radiation.

[00:50:02] Speaker 01:
That's right.

[00:50:02] Speaker 01:
And then they denied the claim.

[00:50:04] Speaker 01:
They later granted the claim, and this regulation then, 3.156C, comes into play.

[00:50:12] Speaker 01:
Because when you get a later grant, based upon the VA's later receipt of service department records, you are given an opportunity for reconsideration.

[00:50:22] Speaker 01:
and there was at the time in 2002 no sanctioned provision in 3.156c any more than there was in 3.159.

[00:50:33] Speaker 01:
And to impose after the fact a sanction

[00:50:39] Speaker 01:
provision that precludes the operation of this regulation is totally inconsistent with what is supposed to be a veteran-friendly circumstance.

[00:50:50] Speaker 01:
The government concedes that post-traumatic stress disorder is a severe psychiatric disability.

[00:50:55] Speaker 01:
We are talking about a person who has ultimately granted the benefit and granted a total rating because he was totally disabled from that condition.

[00:51:04] Speaker 01:
One of the symptoms of post-traumatic stress disorder is amnesia, the inability to recall.

[00:51:12] Speaker 01:
And now we're going to penalize the veteran for the very thing that is a symptom of the disability that we've granted the benefit for.

[00:51:20] Speaker 04:
But that's not what's going on.

[00:51:22] Speaker 04:
If you want to use the word penalize, then what he's being penalized for is not responding to the specific request for information.

[00:51:30] Speaker 01:
And is a psychiatrically disabled person.

[00:51:33] Speaker 04:
Is there any evidence that he couldn't have responded to the September request for information?

[00:51:42] Speaker 01:
No, but what I'm suggesting is that

[00:51:47] Speaker 01:
We have focused on what happens in the adjudication of a claim as a justification for denial and transplanted that onto the provisions of this regulation that didn't have a sanction provision that precluded the right to reconsideration.

[00:52:07] Speaker 01:
The mandatory language of the prior version of 3.156C said shall.

[00:52:13] Speaker 01:
it was mandatory and not permissive.

[00:52:16] Speaker 01:
The VA shall reconsider, which is now what C1 says in the current version.

[00:52:23] Speaker 01:
And it's the interplay between C1 and C2 that allows for C1 not to be operative.

[00:52:31] Speaker 01:
But those provisions didn't exist in either 3.156C in 2002 or exist in 3.159.

[00:52:41] Speaker 01:
Now, clearly had the facts

[00:52:44] Speaker 01:
excuse me, had the regulation been in place and his original application had been made after this regulation went into effect, then he's clearly out of luck.

[00:52:55] Speaker 01:
The question in this case is, was this provision applicable?

[00:53:01] Speaker 01:
It was not

[00:53:02] Speaker 01:
applicable and the alternative method or ground for making it applicable to sanction him was through the back door of 3.159 for which there was no discussion by the board and no fact finding by the board.

[00:53:19] Speaker 04:
Do you have any sense how many veterans claims

[00:53:28] Speaker 04:
the current legal issue before us effect, that is, where the original claim was denied before the amendment of 156C2 and there's a question about whether the non-acquisition of the service records at that time was the result of a insufficient cooperation by the better.

[00:53:58] Speaker 01:
This is a substantial part of my practice.

[00:54:01] Speaker 01:
I worked predominantly with psychiatrically disabled, predominantly with post-traumatic stress disorder.

[00:54:07] Speaker 01:
Up until the time of the amendment to 3.156C, reconsideration was not being afforded.

[00:54:15] Speaker 01:
When they amended it, it started to be afforded.

[00:54:18] Speaker 01:
But then in affording it, they had this escape clause.

[00:54:22] Speaker 01:
And there are tens of thousands of veterans who are affected by this.

[00:54:28] Speaker 01:
that are still in a position in which they have cases that would have entitled them to at least a reconsideration of their original claim.

[00:54:38] Speaker 01:
Not necessarily a guarantee that they would be awarded the effective date of their original claim, but the opportunity to re-present that claim.

[00:54:47] Speaker 06:
All of which under 156 are designed to get an earlier effective date.

[00:54:53] Speaker 01:
That's the ultimate goal.

[00:54:54] Speaker 06:
That's all these cases.

[00:54:56] Speaker 01:
That's correct.

[00:54:57] Speaker 06:
And there have to be lots of them because of the fact that a veteran who filed a PTSD claim didn't quite understand what he was supposed to do, got turned down, it was final, didn't do anything about it.

[00:55:07] Speaker 00:
Yes.

[00:55:08] Speaker 06:
Went through a considerable period of time, finally understood what it was he was supposed to do and came in and said oh my god I forgot to tell you I was at this town

[00:55:16] Speaker 06:
I was there where the Agent Orange was.

[00:55:19] Speaker 06:
And that's a take it to the paymaster claim.

[00:55:22] Speaker 01:
About pro se veterans represented by non-attorneys who simply did not understand the law.

[00:55:29] Speaker 01:
and we're now proposing by the decision in this case to punish them because they didn't understand the law.

[00:55:38] Speaker 01:
That can't possibly be the intent of this regulation.

[00:55:41] Speaker 06:
It depends, doesn't it, Mr. Carpenter, on whether or not the government is correct and the CABC is correct, is that there was a pre-existing penalty

[00:55:51] Speaker 06:
for not doing what your client didn't do here.

[00:55:54] Speaker 01:
And the only way that that alternative ground can be viable is if this case is remanded to give the board an opportunity to address that issue.

[00:56:04] Speaker 06:
Well, it just seemed to me, I mean, I could smell right away that there were lots and lots of cases that were like this, and it seemed odd to me that we would be putting a position where we would be asked to affirm the board on an alternative ground that it brought up on its own motion without briefing an argument that is 180 degrees away from what the BVA did.

[00:56:24] Speaker 06:
And now there seems to be some question as to whether or not the CAVC is giving retroactive effect

[00:56:31] Speaker 06:
to reopen cases as opposed to cases that had pending claims.

[00:56:35] Speaker 06:
Yes.

[00:56:36] Speaker 06:
And so I don't know what that aspect is.

[00:56:40] Speaker 03:
OK.

[00:56:41] Speaker 03:
Could we move on?

[00:56:42] Speaker 03:
I think we've heard the critical issues.

[00:56:47] Speaker 03:
Thank you, Don.

[00:56:48] Speaker 03:
The case is taken under submission.

[00:56:55] Speaker 06:
May that conclude the argument.

[00:56:58] Speaker 06:
All rise.

[00:56:59] Speaker 06:
You can't get up until you whack it.

[00:57:01] Speaker 04:
On the board, the adjournment is now boarding.

[00:57:04] Speaker 04:
It's an o'clock AM.

[00:57:16] Speaker 06:
I'm sorry to be a little rough on you, Mr. Carpenter, but do check it in brief.

[00:57:20] Speaker 06:
That is a mistake, and you were called out on that to see if you see an opinion.

[00:57:25] Speaker 01:
Yes, I was.

[00:57:27] Speaker 01:
And it's the date of the claim that's what the problem was.

[00:57:29] Speaker 06:
I understand that.

[00:57:30] Speaker 01:
Thank you.