[00:00:05] Speaker ?:
Okay.

[00:00:29] Speaker 04:
The next case is number 16, 1946, Manzanares against the Secretary of Veterans Affairs, Mr. Carpenter.

[00:00:39] Speaker 00:
May it please the Court, Kenneth Carpenter, appearing on behalf of Martha Manzanares.

[00:00:45] Speaker 00:
The Veterans Court in this case misinterpreted the provisions of 38 CFR 3.156b when it relied upon its own precedent in the Ross case.

[00:00:55] Speaker 00:
In the Ross case, 3.156b was not at issue.

[00:00:59] Speaker 00:
three point one ten three point three one ten was at issue as it is in this case however the decision in Ross was the reliance by the Veterans Court was misplaced because the only provision that related to effective date was the statutory provision three point one five six B is a regulatory provision that requires the VA to take specific action

[00:01:28] Speaker 00:
this court has on multiple occasions.

[00:01:30] Speaker 03:
The problem is that the secondary service connection claim is treated in Ellington as a separate claim.

[00:01:39] Speaker 03:
And if it's a separate claim, as Ellington doesn't have to have the same effective date, why isn't your argument inconsistent with Ellington?

[00:01:51] Speaker 00:
Because Ellington did not address the provisions of 3.156b

[00:01:55] Speaker 00:
And in Ellington, it was not part of a continuous appellate process.

[00:02:00] Speaker 00:
3.156b deals with the one-year appeal period following an original decision, and then during the pendency of an appeal.

[00:02:09] Speaker 00:
Ellington did not address that issue.

[00:02:12] Speaker 03:
In Ellington, the court was confronted with whether or not 3.... If the secondary service connection is a separate claim, as Ellington says it is, doesn't that defeat your argument?

[00:02:23] Speaker 00:
In the context of Ellington, it was a separate claim because there was no direct involvement of other claims pending, which is what 3.156b covers.

[00:02:36] Speaker 00:
3.156b specifically addresses the required analysis when the VA receives new and material evidence.

[00:02:45] Speaker 00:
There should be a required examination under the provisions of 3.156b

[00:02:50] Speaker 00:
because the VA received new and material evidence specifically whether or not there were additional disabilities resulting from Ms.

[00:02:58] Speaker 00:
Manzanares' service connected bilateral ankle condition.

[00:03:02] Speaker 00:
That was part and parcel of the claim for increase because placing at issue the question of whether or not there was additional disabilities would have resulted in, and ultimately did, additional compensation to Ms.

[00:03:16] Speaker 00:
Manzanares.

[00:03:16] Speaker 01:
I understand what you just said about it being part and parcel.

[00:03:19] Speaker 01:
of a claim for increase.

[00:03:22] Speaker 01:
If you get a secondary service condition claim, don't you get a separate rating?

[00:03:27] Speaker 01:
It doesn't increase the other claims rating, does it?

[00:03:31] Speaker 00:
Well, the plain language of 3.310 says that it will be rated as part of.

[00:03:37] Speaker 00:
The process that the VA adopts, in fact, is to rate that additional disability separately.

[00:03:45] Speaker 00:
But the plain language

[00:03:48] Speaker 00:
But it is an increase, Your Honor, because you get more compensation.

[00:03:52] Speaker 01:
You've both been doing this a long time.

[00:03:54] Speaker 01:
A claim for an increase is you have a disability and you have a rating and you think it's worsened and you want an increase.

[00:04:01] Speaker 01:
Correct.

[00:04:02] Speaker 01:
But it's not, if you get another claim granted, whether it's secondary or not secondary,

[00:04:09] Speaker 01:
And that increases your overall rating.

[00:04:11] Speaker 01:
That's not a claim for increase.

[00:04:13] Speaker 01:
That's a claim.

[00:04:14] Speaker 01:
It's a new claim with a new rating, isn't it?

[00:04:17] Speaker 00:
No, it's not, Your Honor.

[00:04:18] Speaker 00:
It's a separate issue, just like the issue of extra scheduler total rating is an additional issue that must be dealt with when the facts are presented during the course of the appeal of the scheduler rating.

[00:04:31] Speaker 00:
Ms.

[00:04:32] Speaker 00:
Manzanares placed at issue the scheduler rating.

[00:04:35] Speaker 00:
She went from non-compensable to compensable and filed a notice of disagreement.

[00:04:39] Speaker 01:
So let me ask you this hypothetical then.

[00:04:41] Speaker 01:
Suppose I have a 20% disability rating for a foot issue.

[00:04:48] Speaker 01:
And within a year, I say, oh, I have this other completely different issue with my hearing.

[00:04:56] Speaker 01:
I'm going to file that and try to get the date back to the ankle, even though they're not secondarily connected.

[00:05:02] Speaker 01:
Wouldn't your argument that this is a claim for increase still invoke 3.156 under your theory?

[00:05:09] Speaker 01:
No, Your Honor, because... It could be increasing the overall disability number.

[00:05:12] Speaker 00:
No, because the precise language of 3.156b that has been interpreted by this court is whether or not that new and material evidence

[00:05:21] Speaker 00:
relates back to the pending claim.

[00:05:23] Speaker 00:
A hearing claim would not relate back to the ankle claim or a foot claim in your hypothetical because they are not related.

[00:05:35] Speaker 00:
What is required by 3.156b and has been repeatedly affirmed by this court is that it is a required analysis because the VA has received during the pendency of either the appeal window

[00:05:49] Speaker 00:
the one year following the original decision or during the pendency of the appeal, that during that time the VA receives new and material evidence and then is required to perform a specific assessment.

[00:06:00] Speaker 04:
And that is... And the consequence, the only consequence then, would be the retroactivity of the increase in compensation?

[00:06:07] Speaker 00:
That's correct.

[00:06:08] Speaker 00:
And whether or not it would relate to the request for increased compensation for, in this case, for ankle, bilateral ankle conditions as related to the secondary disability, which the VA found

[00:06:19] Speaker 00:
that they found was a separate claim that was independent of and they in fact made an adverse finding by making that without doing the required assessment under 3.156b to determine whether or not in fact that new and material evidence received within the one-year appeal period related back to her bilateral ankle condition.

[00:06:42] Speaker 03:
Your problem is that what one point

[00:06:45] Speaker 03:
3.156B says it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

[00:06:54] Speaker 03:
That's correct.

[00:06:55] Speaker 03:
If they're two separate claims and the secondary service connection wasn't pending, then it doesn't relate back.

[00:07:01] Speaker 00:
But with respect, Your Honor, they are not two separate claims.

[00:07:05] Speaker 03:
That's the problem, but Ellington says they are.

[00:07:07] Speaker 01:
Ellington says... And also they're rated separately.

[00:07:10] Speaker 00:
If I can finish this one first.

[00:07:11] Speaker 00:
I know, I'm sorry.

[00:07:14] Speaker 00:
They were in Ellington because they were clearly distinguishable in time.

[00:07:20] Speaker 00:
These actions are not clearly distinguishable in time and implicate the provisions of 3.156b because of where they were presented in the process.

[00:07:33] Speaker 00:
As the Veterans Court found in Rice, it is inextricable, part and parcel of the same process

[00:07:39] Speaker 00:
to deal with both scheduler and extra scheduler.

[00:07:42] Speaker 00:
Why?

[00:07:42] Speaker 00:
Because they relate to the overall compensation when the issue of extra scheduler is raised, which can be raised as a separate claim, is raised during that process.

[00:07:55] Speaker 00:
It is a different analysis that is mandated by the VA's regulations.

[00:08:00] Speaker 00:
We should be interpreting this regulation, this Court should be interpreting this regulation, as the liberal regulation that it is

[00:08:08] Speaker 00:
for the benefit of veterans.

[00:08:10] Speaker 00:
All we're talking about here is a year or a year and a half worth of additional effective date for a condition that the VA has conceded is related to the very disability that she was seeking additional compensation for.

[00:08:25] Speaker 00:
So it is in the context we cannot simply rely upon Ellington in which the facts are clearly distinguishable that the claim for secondary is a separate claim.

[00:08:38] Speaker 00:
I'm sorry to choose I forgot your question.

[00:08:40] Speaker 01:
Well it's a separate claim because it's rated separately.

[00:08:44] Speaker 01:
Even I think what you're asking for under this process you're still going to get one rating for the ankle and you're going to get a separate rating for whatever the secondary condition it is.

[00:08:55] Speaker 01:
You're not going to get an increase in the ankle rating.

[00:08:58] Speaker 00:
No I'm not going to get an increase in the ankle rating.

[00:09:01] Speaker 01:
You have two claims.

[00:09:02] Speaker 01:
You have a claim for the ankle and you have a claim

[00:09:04] Speaker 01:
with respect, Your Honor.

[00:09:06] Speaker 00:
And I think this is where the Rice case is very important for this Court to review.

[00:09:13] Speaker 00:
The Rice panel recognized the lack of imprecision that is used.

[00:09:19] Speaker 00:
And when we talk about claims, the claim here was for additional compensation.

[00:09:25] Speaker 00:
When she started this process, I believe in 2006,

[00:09:29] Speaker 00:
She had no compensation for her ankle.

[00:09:32] Speaker 01:
This is where I understand the logic to your argument, but I don't understand how you cabinet then.

[00:09:38] Speaker 01:
If you view this as a claim for additional compensation, how you cabinet to any addition, not to include any additional compensation.

[00:09:49] Speaker 00:
As I hopefully responded to Judge Dyke's question,

[00:09:53] Speaker 00:
It is not a separate claim in this context.

[00:09:56] Speaker 03:
You're saying that secondary service connection claims are different and that they ought to be treated as part of the same claim as the original disability.

[00:10:05] Speaker 00:
When they arise in the context in which there is a pending claim for additional compensation, when it is raised independently, just like when TDIU is raised independently,

[00:10:19] Speaker 00:
That is and should be recognized by the agency as a separate claim.

[00:10:23] Speaker 00:
But when it happens within a claim stream, and clearly what we have here is an active claim stream, that that should be recognized as a separate issue in the question of is there is an entitlement to additional compensation.

[00:10:41] Speaker 00:
And.

[00:10:41] Speaker 04:
The real problem is calling it secondary.

[00:10:43] Speaker 00:
Correct.

[00:10:44] Speaker 04:
You're saying this is all.

[00:10:45] Speaker 00:
Because the end result.

[00:10:47] Speaker 04:
The primary, not secondary.

[00:10:49] Speaker 04:
So, and that there shouldn't be a bright line if it is the primary claim, but there are difficulties, are there not, with this distinction between a primary and a secondary claim that you say isn't secondary at all?

[00:11:05] Speaker 01:
Yes.

[00:11:06] Speaker 01:
But if it was part of the primary claim, you would be seeking an increase in the disability rating for that claim, not a different rating for the secondary claim.

[00:11:19] Speaker 00:
not a different rating.

[00:11:20] Speaker 00:
I'm not sure I know what you mean by that last phrase.

[00:11:23] Speaker 01:
Well, I thought you just said that the secondary condition claim is part of the primary condition claim.

[00:11:28] Speaker 01:
But if it's part of it, then it is an increase in that claim, not a separately rated claim.

[00:11:35] Speaker 00:
No, Your Honor, because the issue here is not increase.

[00:11:38] Speaker 00:
The issue here is effective date.

[00:11:40] Speaker 00:
when the date is effective for the award of additional secondary service-connected compensation for the back-related disability?

[00:11:49] Speaker 00:
And should it go back to when the pending claim began for when she attempted to move from noncompensable to compensable and then to secondary?

[00:11:59] Speaker 00:
And that it is the context in which this regulation provides for a specific affirmative requirement which this Court has recognized

[00:12:11] Speaker 00:
for the VA to do a specific assessment.

[00:12:16] Speaker 04:
Okay.

[00:12:17] Speaker 04:
Let's hear from the VA, Mr. Hockey.

[00:12:20] Speaker 02:
May I please report?

[00:12:23] Speaker 04:
How do we know when the later filed claim for somehow things have gotten worse is a secondary consideration or part of the primary claim all along?

[00:12:37] Speaker 02:
We begin with the first step

[00:12:39] Speaker 02:
of the three-part test for service connection that this Court has referred to by the name of the Veterans Court decision that I discussed it called Calusa.

[00:12:50] Speaker 02:
And that first prong and the prong that everyone needs for any claim for Veterans benefits is a disability, a present disability.

[00:12:58] Speaker 02:
And that is really the basis of this Court's decision in Ellington when it distinguished between a primary and a secondary service connection claim.

[00:13:07] Speaker 02:
Because in a secondary service connection claim, unlike the primary service connection claim, you have two different disabilities.

[00:13:16] Speaker 02:
So there are two different claims.

[00:13:18] Speaker 04:
And even more significantly, the... But you're presuming there are different claims in different disabilities and what we're asked is when the line isn't so clear as to what is now being called secondary is not a consequence of the primary or related to it.

[00:13:37] Speaker 02:
With all respect, I do think the line is clear.

[00:13:40] Speaker 02:
A secondary service connection claim, by its nature, is one that would not have occurred, but for, or wouldn't be a basis for benefits, but for the existence of a primary service connection claim.

[00:13:50] Speaker 03:
Your problem here, I think, is with 3.310, which says when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.

[00:14:05] Speaker 03:
And if you read that together with 3.156b, there is an argument that the, for that, for purposes of 156b, that the secondary service connection claim ought to be considered to be part of the primary claim, right?

[00:14:25] Speaker 02:
There's an argument, and Ms.

[00:14:26] Speaker 02:
Manzanaris has made that argument, ignoring that this court in Ellington has already held that 3.310

[00:14:34] Speaker 02:
cannot stand for that proposition when it comes to effective dates, because it makes no logical sense.

[00:14:39] Speaker 03:
Yeah, but as Mr. Carpenter points out, I wasn't dealing with the 156B.

[00:14:43] Speaker 02:
156B only implicates the duty of the VA to consider evidence which otherwise wouldn't be timely presented to the board.

[00:14:53] Speaker 02:
This court has struggled in numerous cases over the years, DAV being one, with respect to late-submitted evidence before the board.

[00:15:01] Speaker 02:
And 3.156B simply says,

[00:15:03] Speaker 02:
If the evidence comes in to the board relating to the claim that's pending before the board, any time within the expiration of the appeal period, that evidence must be reconsidered by the VA.

[00:15:14] Speaker 02:
And to the extent an award based upon the claim pending is granted, then the claimant gets the benefit of the effective date of the claim that started the whole process.

[00:15:25] Speaker 02:
But what we're explaining here.

[00:15:26] Speaker 03:
What is the point of 3.310?

[00:15:32] Speaker 03:
What role does that play in adjudication of veterans' benefits?

[00:15:48] Speaker 02:
I think it has to do with basically, I think it sets up the agency we're dealing with, the totality of the disabilities going forward.

[00:16:02] Speaker 03:
I don't understand what that means.

[00:16:04] Speaker 02:
Yeah, because it doesn't affect effective dates.

[00:16:07] Speaker 02:
Because the premise, and Ellington, this court accepted the idea that a secondary service connection claim is different than a primary service connection.

[00:16:14] Speaker 03:
Well, I understand that it may not affect effective dates, but 3.310 must have some purpose.

[00:16:20] Speaker 03:
And if the purpose would seem to be that for some purposes you would consider the secondary service connection claim to be part of the primary claim.

[00:16:32] Speaker 03:
And the question is, if not for purposes of 156B, then for what purpose?

[00:16:38] Speaker 03:
What is the role of this other provision?

[00:16:41] Speaker 02:
I can address that with supplemental briefing.

[00:16:43] Speaker 02:
But standing here today, I would suspect it has to do with ratings and not effective dates.

[00:16:48] Speaker 03:
I'm sorry.

[00:16:49] Speaker 03:
What does that mean?

[00:16:51] Speaker 02:
Well, when you're considering the overall rating for an individual, it's suggesting that although there are other regulations that deal with that.

[00:17:02] Speaker 02:
But it would be speculation that it has to deal with ratings.

[00:17:04] Speaker 02:
Because it can't deal with effective dates, and it doesn't get implicated until after service connection.

[00:17:08] Speaker 02:
So of the five potential prongs, disabilities, in-service event, nexus, rating and effective date, the only one that appears to be implicated is rating.

[00:17:22] Speaker 02:
Effective date, the reason there are different claims, Your Honor, is because the in-service prong for a secondary service connection isn't an actual in-service event or injury.

[00:17:31] Speaker 02:
like it would be for a primary, it's the existence of the primary.

[00:17:35] Speaker 02:
In other words, when someone comes in with a secondary service connection, as is implicated in this court's decision in Ellington, the argument about the relationship to service isn't that someone was injured, they jumped out of an airplane, or they developed a disease.

[00:17:49] Speaker 02:
It's that the injury that's already been service-connected, the primary service connection, resulted in a secondary injury or disease or disability, I should say.

[00:18:00] Speaker 02:
that wouldn't have existed but for the primary.

[00:18:03] Speaker 02:
And Ms.

[00:18:04] Speaker 02:
Manzanares case is a perfect example where she was service connected in 1992 for ankles.

[00:18:10] Speaker 02:
And in 2006, 2007, she complained about a back and suggested that the reason her back had developed its disability was because of the ankle injury.

[00:18:20] Speaker 02:
She didn't suggest that she had a back injury because of some service event like she had with respect to her ankle.

[00:18:27] Speaker 02:
So this leads us to the point where, like this court suggested in Ellington, you cannot treat those two primary and secondary service connection claims for purposes of effective dates the same as 3.310 would suggest.

[00:18:43] Speaker 03:
But I think that gets back to the question I was asking before as to what the purpose of 3.310 is.

[00:18:49] Speaker 03:
I mean, it would be helpful to me, Judge Newman, if we had short supplemental briefing on that.

[00:18:57] Speaker 04:
Yes, I think it would indeed be helpful.

[00:19:00] Speaker 02:
I will do that.

[00:19:01] Speaker 02:
But our argument remains that it cannot be for purposes of the effective date.

[00:19:08] Speaker 02:
One, this Court's already found that to be the case.

[00:19:11] Speaker 02:
But two, it doesn't make intuitive sense that someone could obtain benefits at a time when they weren't disabled.

[00:19:20] Speaker 02:
Now, even accepting Ms.

[00:19:21] Speaker 02:
Manzanera's theory that she was discussing earlier about in this case,

[00:19:26] Speaker 02:
There was only maybe a year or a year and a half from the time that she submitted her claim for an increase for ankles and the time she submitted a claim for secondary service connection.

[00:19:36] Speaker 02:
That doesn't answer the question.

[00:19:38] Speaker 02:
If there is no disability at the time of the original claim, there cannot be under 5110A a basis for finding facts found on the existence of a disability when none exists.

[00:19:49] Speaker 02:
You need to have the disability in order to obtain the service connection benefits, and that's the logic

[00:19:55] Speaker 02:
that's identified in Ellington that's not answered in this case, notwithstanding the existence of 3.156b.

[00:20:02] Speaker 02:
3.156b may impose a duty on the VA when reviewing the claim to consider evidence that's submitted after the certification of the record to the Board, and to the extent that goes back to the original pending claim, as the plain language of 3.156b says.

[00:20:24] Speaker 02:
In 2006, there was no claim for a back disability.

[00:20:28] Speaker 02:
There was a claim for an ankle disability.

[00:20:30] Speaker 02:
So under the plain language of 3.156b, evidence that came in during that time period related to a different disability does not implicate 3.156b.

[00:20:38] Speaker 02:
So there isn't any basis to concern them.

[00:20:43] Speaker 02:
You know, there's no dueling regulations that are inconsistent with each other.

[00:20:48] Speaker 02:
It has to be based on the claim pending at the time of the original appeal to the board.

[00:20:54] Speaker 02:
We don't have that here.

[00:20:55] Speaker 02:
The claim that was provided later was one for a secondary service connection that was based on a different disability, which required a different analysis.

[00:21:06] Speaker 02:
Not only is the disability different, the whole analysis is different.

[00:21:11] Speaker 02:
Your in-service prong is not to an event or disease.

[00:21:14] Speaker 02:
It's to the primary disability.

[00:21:16] Speaker 02:
The nexus has to be connecting that to the primary disability.

[00:21:21] Speaker 02:
It's a wholly separate analysis that takes place.

[00:21:23] Speaker 02:
It's a different claim.

[00:21:24] Speaker 02:
under, you know, under the way VA looks at claims.

[00:21:29] Speaker 02:
So 3.156B is not implicated.

[00:21:32] Speaker 02:
3.310 could be implicated, but this Court held in Ellington that to come up with a per se rule with respect to effective dates being implicated when 3.310 refers to original claim doesn't make sense.

[00:21:47] Speaker 02:
And we submit that this case doesn't provide an exception to that.

[00:21:50] Speaker 02:
It doesn't make sense to obtain

[00:21:53] Speaker 02:
disability benefits for a time period in which you don't have, or at least the facts can establish, that you have a disability.

[00:22:01] Speaker 04:
So if in fact it looks as if what has occurred with time that we're calling a secondary disability is in fact part of the primary disability, then how does the veteran proceed?

[00:22:16] Speaker 02:
So, well, hypothetically,

[00:22:20] Speaker 04:
If I'm understanding Your Honor's question, let's... I'm trying to understand whether there really is a bright line that we should draw and sustain when there is a later claim because the consequences of the primary disability have become more manifest.

[00:22:38] Speaker 02:
Where this might work would be in a live claim situation.

[00:22:45] Speaker 02:
Well, it would still be dependent on the facts found, but let's say hypothetically... Well, that's my concern.

[00:22:49] Speaker 04:
It's dependent on the facts found, and yet we're saying that once you somehow attach the tag secondary to it, there are no more facts to be found.

[00:22:59] Speaker 02:
So in a live claim hypothetical where the individual perhaps has, and this could be implicated through the citation in the reply brief to 3.155, the duty on the VA to try to find all facets

[00:23:15] Speaker 02:
of the claim in ancillary benefits and whatnot.

[00:23:21] Speaker 02:
So somebody comes in with an ankle claim.

[00:23:23] Speaker 02:
It hasn't been service-connected, but there's also evidence of a back disability, but they don't ask for it at the time.

[00:23:29] Speaker 02:
So the VA begins the analysis, and this is a live claim, and determines that, in fact, the ankles were damaged from service.

[00:23:36] Speaker 02:
They also find out that there's a back disability, and they can figure out that that back disability is also attributable to service.

[00:23:43] Speaker 02:
In that situation, although the back disability is attributable to the ankle disability, because that's a live claim and the VA is determined that both of them have a service connection component, albeit the back is through the ankles, but that the evidence also supports the finding of service connection for effective date purposes for the secondary claim to go back to the original claim, even though it wasn't claimed.

[00:24:12] Speaker 02:
then in that situation, you could have an effective date where both primary and secondary service connection claims would share the same effective date.

[00:24:20] Speaker 02:
In Ellington, the reason that didn't happen is because there was a break.

[00:24:24] Speaker 02:
There was a claim which was awarded for primary, and then years went by, and then there was another claim for secondary.

[00:24:30] Speaker 02:
And you couldn't leap back for effective date purposes to connect the secondary claim to the primary claim.

[00:24:36] Speaker 03:
But I'm not sure that Mr.

[00:24:39] Speaker 03:
Carpenter's argument would take us to that point where there was an inconsistency with the result in Ellington.

[00:24:48] Speaker 03:
I understand your point, and it's one that's made in Ellington, that a secondary service connection condition may come years after the primary service connection

[00:25:00] Speaker 03:
and that the two don't necessarily have the same effective date.

[00:25:04] Speaker 03:
But I wonder whether his reading of 3.156B really leads to that conclusion because all it says is that under his reading that if you have evidence of secondary service connection, it will be considered in connection with the original claim.

[00:25:21] Speaker 03:
If the secondary service connection evidence shows that the condition came afterwards,

[00:25:28] Speaker 03:
the consideration of that evidence wouldn't lead you to the conclusion that they had the same effective date.

[00:25:34] Speaker 03:
So, I don't know whether I'm making myself clear, but it seems to me that his argument doesn't necessarily take you to the point where you, where as a result of considering the evidence to be part of the original claim that you would necessarily say that they had the same effective date because the secondary service connection condition might have arisen later.

[00:25:56] Speaker 02:
It's clear that Ms.

[00:25:59] Speaker 02:
Manzanares has a better argument than did Mr. Ellington because of the lack of the separation and that the secondary service connection claim was made during a time in which Ms.

[00:26:08] Speaker 02:
Manzanares had a claim pending.

[00:26:11] Speaker 02:
It wasn't a new claim, though.

[00:26:12] Speaker 02:
It was a claim to reopen an old claim.

[00:26:15] Speaker 02:
And new material evidence is always going to be geared toward examining what was that old claim.

[00:26:20] Speaker 02:
This was sort of the one point we made in our briefs.

[00:26:23] Speaker 02:
New and material evidence is the standard you meet in order to reopen a finally decided claim.

[00:26:30] Speaker 03:
Do you agree that his argument doesn't necessarily take us to the point where the primary and secondary would have the same effective date?

[00:26:39] Speaker 02:
I think that is his argument.

[00:26:42] Speaker 02:
of the happenstance of the new claim being filed while he had an old claim pending.

[00:26:47] Speaker 01:
But only if it's brought within the one year provided by 3.15 steps.

[00:26:51] Speaker 02:
Right, but that's what we're saying, is that it's the happenstance of the timing that otherwise allows him to avoid the implications of Ellington.

[00:27:00] Speaker 02:
He identifies a, Ms.

[00:27:03] Speaker 02:
Manzanares identifies a procedural vehicle

[00:27:06] Speaker 02:
allegedly, 3.156b.

[00:27:07] Speaker 01:
So within one year, secondary can be considered part of the same claim.

[00:27:11] Speaker 01:
After one year, it can't under Ellington.

[00:27:14] Speaker 02:
I don't think Ellington speaks in terms of years.

[00:27:16] Speaker 02:
I think that Ellington makes the broad... I'm sorry.

[00:27:20] Speaker 01:
That's at least the gist of his argument, isn't it?

[00:27:24] Speaker 02:
That could be viewed as the gist, but it doesn't need to be limited to one year, because you could have a hypothetical in which someone

[00:27:30] Speaker 02:
someone's new material evidence claim is pending over a number of years, five years.

[00:27:34] Speaker 02:
So they keep submitting new material evidence, and it keeps getting rejected.

[00:27:38] Speaker 02:
And then at some point during that process, a claim for secondary service connection is made.

[00:27:43] Speaker 02:
And using the 3.156b theory, that individual could end up getting benefits for a five-year period in which there was no existence of a secondary service connection disability.

[00:27:53] Speaker 03:
I'll ask him, but I'm not sure that his argument takes him that far.

[00:27:57] Speaker 02:
I'm not sure.

[00:27:58] Speaker 02:
I've heard a limitation yet, Your Honor.

[00:28:00] Speaker 02:
I've heard the argument that the reason Ellington doesn't apply is because of 3.156, and that

[00:28:06] Speaker 02:
happenstance that he had a pending new and material evidence claim.

[00:28:09] Speaker 03:
But I think the argument would be that that simply means that you consider the evidences to secondary service connection in connection with the original claim.

[00:28:18] Speaker 03:
If the secondary condition arose later it would have a different effective date and I don't think he's saying that 156B necessarily means that it has the same effective date if it's a later arising condition.

[00:28:33] Speaker 02:
There are two different claims.

[00:28:34] Speaker 02:
I think that's getting lost here.

[00:28:37] Speaker 03:
Well, that's the question.

[00:28:38] Speaker 03:
And the question is whether, I mean, certainly you have a very good argument based on the face of 156b that there are two separate claims.

[00:28:45] Speaker 03:
The problem is what does 3.310 mean?

[00:28:54] Speaker 03:
To me, that's the troubling issue.

[00:28:56] Speaker 02:
Yes, and at this stage, pending supplemental response suggests that this Court has addressed the implications of 3.310 vis-a-vis effective dates and determined that they aren't, that you don't have a rule, at least a per se rule, that the effective dates would be the same.

[00:29:13] Speaker 02:
And we don't feel that 3.156B is the vehicle by which one can somehow make a disability exist at a time when the evidence suggests it does not.

[00:29:23] Speaker 02:
And that is, fundamentally, you get service connection for disabilities.

[00:29:27] Speaker 02:
If you don't have a disability, you don't obtain VA benefits.

[00:29:31] Speaker 02:
And so whether or not Ms.

[00:29:33] Speaker 02:
Manzanares, I mean, just trying to take these facts, the claim for the secondary service connection was made in April of 2007.

[00:29:41] Speaker 02:
And let's assume that at that date, that was the first time the disability existed.

[00:29:47] Speaker 02:
Then that, according to facts found, would be when you get your benefits.

[00:29:51] Speaker 02:
There are certain look-back provisions, including implied claims, which was rejected by the Veterans Courts here.

[00:29:57] Speaker 02:
But here, we believe that this Court should follow the guidance of Ellington and not find that 3.156b is a way around it.

[00:30:07] Speaker 04:
Thank you, Mr. Hockey.

[00:30:09] Speaker 04:
Mr. Carpenter?

[00:30:10] Speaker 00:
If I could just get a clarification on the supplemental briefing first, Your Honor.

[00:30:17] Speaker 00:
Do you want to hear from me, or are you only asking to hear from the government?

[00:30:20] Speaker 00:
I'm happy to provide my own supplemental briefing, but I wasn't sure from the order.

[00:30:26] Speaker 04:
Well, I thought after we heard your argument, I would invite Judge Dyke to tell us precisely the area in which supplemental briefing would be helpful.

[00:30:37] Speaker 04:
Okay.

[00:30:37] Speaker 04:
Does that make sense?

[00:30:39] Speaker 04:
Yeah, sure.

[00:30:40] Speaker 03:
Okay.

[00:30:40] Speaker 03:
But could I understand how far your argument takes you?

[00:30:44] Speaker 03:
Because I think Mr. Hockey says correctly that it cannot be that 156B

[00:30:50] Speaker 03:
gives you an earlier effective date before the secondary service condition arose.

[00:30:55] Speaker 03:
Existed.

[00:30:56] Speaker 03:
Absolutely, Your Honor.

[00:30:57] Speaker 03:
Right.

[00:30:58] Speaker 03:
So if that were the situation, that considering the evidence together with the original claim wouldn't give you an effective date that would be the same as the primary service connection.

[00:31:10] Speaker 00:
That would be correct.

[00:31:11] Speaker 00:
However, what is overlooked by Mr.

[00:31:14] Speaker 00:
hockey in his argument is, is the mandate that this Court has found that exists in 3.156b to do that very assessment, to decide whether it does or doesn't relate to the ankle disabilities, and if it does, when did it, from the date of the claim to the date of the application?

[00:31:32] Speaker 03:
I think if you just look at 156b, you've got a hard road to hope.

[00:31:36] Speaker 03:
That language doesn't help you all that much.

[00:31:42] Speaker 03:
Unless you can say

[00:31:43] Speaker 03:
that 3.310 treats them as the same claim for some purpose, and that one of the purposes is for 156B, then it seems to me you've got a difficult situation.

[00:32:00] Speaker 00:
Well, Your Honor, I do not believe it's a difficult situation because I think the language of 3.310 is clear, that the intention of the Secretary's creation of this regulation, and it's critically important for this Court to keep in mind

[00:32:12] Speaker 00:
that there is no statutory predicate for 3.310.

[00:32:15] Speaker 00:
The secretary did this under his 511 authority to write regulations.

[00:32:23] Speaker 00:
He wrote this regulation with the specific language that a secondary condition that was discovered after service to be related to a service-connected disability is entitled to be treated as part of the primary service-connected condition.

[00:32:40] Speaker 01:
I thought the purpose of that, and I agree if that's the language, is so that it makes clear that the secondary service-connected disability has a service connection via accessibility, but not to do with effective aids.

[00:32:56] Speaker 01:
Because we certainly connect, let me just finish.

[00:32:58] Speaker 01:
I mean, I think we agree that 3.310 definitely, that one point of it is to establish the service connection, because you need a service connection for secondary

[00:33:08] Speaker 01:
connected disabilities, and they may arise well after service, so they don't have any direct form.

[00:33:14] Speaker 01:
But isn't that what 3.31 now is about?

[00:33:17] Speaker 01:
It may be about what else you say about effective dates, but isn't that at least one of the bases for it?

[00:33:22] Speaker 00:
I believe that that is the precise basis for it.

[00:33:24] Speaker 00:
But I think that the discussion of effective date is a distraction.

[00:33:30] Speaker 00:
Ellington is about effective date.

[00:33:32] Speaker 00:
This case is about the application of 3.31.

[00:33:37] Speaker 00:
156B when the VA receives new and material evidence.

[00:33:42] Speaker 00:
Contrary to Mr. Hockey's suggestion, 3.156 contains three separate provisions.

[00:33:49] Speaker 00:
Only 3.156A relates to new and material evidence for the purpose of reopening.

[00:33:54] Speaker 00:
3.156B deals with a pending claim, and if this pending claim is about Mrs. Manzanares' bilateral ankle condition, that necessarily

[00:34:05] Speaker 00:
is part and parcel of whether or not she has an additional disability to her back.

[00:34:11] Speaker 00:
The question of how it relates is whether or not under 3.156b that disability existed in that window.

[00:34:19] Speaker 00:
It certainly cannot go back before the date of the claim.

[00:34:23] Speaker 00:
I concede.

[00:34:24] Speaker 00:
But from the date of the claim to the date in which she submitted that new material evidence, the date upon which 3.156b was triggered,

[00:34:33] Speaker 00:
That is the window in which the VA is required to make its assessment.

[00:34:38] Speaker 00:
So this case is not about effective date, even though that is the result.

[00:34:42] Speaker 00:
The same applies with 3.156C.

[00:34:46] Speaker 00:
Both of those provisions are just like 3.310, provisions that were written by the secretary that have no statutory predicate.

[00:34:55] Speaker 00:
They are liberal provisions that are intended to assist the veteran in getting the maximum benefit

[00:35:02] Speaker 00:
for all of the disabilities that result from an injury or disease that was incurred in service.

[00:35:07] Speaker 00:
Unless there's further questions from the panel.

[00:35:10] Speaker 04:
I'm still a little confused as to whether I'm... Can the supplemental briefing tell counsel what would be helpful?

[00:35:17] Speaker 03:
I think what I'm suggesting is both sides address this issue, say no more than three pages, say ten days from now, and the issue

[00:35:31] Speaker 03:
is what's the history and purpose of 3.310 and how does it relate to 156B.

[00:35:42] Speaker 04:
That's right.

[00:35:42] Speaker 04:
Okay.

[00:35:42] Speaker 04:
Does that assist you both?

[00:35:44] Speaker 04:
Three pages are preferable if you run over slightly.

[00:35:48] Speaker 04:
Okay.

[00:35:50] Speaker 04:
All right.

[00:35:50] Speaker 04:
Thank you.

[00:35:51] Speaker 04:
Thank you both.

[00:35:52] Speaker 04:
The case is taken under submission.