[00:00:00] Speaker 02:
is 2017-1830 Arribas Rivera versus O'Rourke.

[00:00:06] Speaker 02:
Mr. Carpenter, please proceed.

[00:00:08] Speaker 03:
Thank you very much, Your Honor.

[00:00:09] Speaker 03:
May it please the Court, Count Carpenter, appearing on behalf of Mr. Jose Arribas Rivera.

[00:00:15] Speaker 03:
This case deals with the question of whether or not a VA regulation, specifically 3.156C2, can be applied retroactively.

[00:00:25] Speaker 03:
The Veterans Court, we believe, relied upon a misinterpretation of that regulation when it applied it retroactively or allowed the board to apply it retroactively in this case.

[00:00:35] Speaker 01:
Why is this even a case that involves that regulation?

[00:00:40] Speaker 01:
Why is this a case that even involves that regulation?

[00:00:43] Speaker 01:
Doesn't that regulation expressly apply to claims for reconsideration?

[00:00:49] Speaker 03:
Yes, it does, Your Honor.

[00:00:50] Speaker 01:
All right, and how is this a claim for reconsideration?

[00:00:52] Speaker 01:
I mean, isn't this a new claim?

[00:00:56] Speaker 03:
No, Your Honor, it's not a new claim.

[00:00:58] Speaker 03:
Well, whether the 2007 claim was a new claim is not relevant to the application of 3.156C.

[00:01:06] Speaker 02:
Why?

[00:01:07] Speaker 02:
But the board expressly found that this was a new claim.

[00:01:10] Speaker 02:
And you agree that's a fact finding over which we have no jurisdiction, correct?

[00:01:13] Speaker 02:
I do, Your Honor.

[00:01:14] Speaker 02:
So the board found this is a new claim over which we have no jurisdiction.

[00:01:18] Speaker 02:
And the regulation says,

[00:01:20] Speaker 02:
This is a case that will be applied when the former decision will be reconsidered.

[00:01:25] Speaker 02:
So if the board found, as a matter of fact, this is a new claim, and we have no jurisdiction to review that conclusion, and the regulation only applies to reconsideration of former decision by its own words, what is there for us to do in this case?

[00:01:38] Speaker 03:
Because what is to be reviewed upon reconsideration is Mr. Arribas Rivera's 1980 claim.

[00:01:46] Speaker 03:
This has nothing to do with reviewing that subsequent claim.

[00:01:50] Speaker 03:
In fact, the subsequent claim should not have proceeded under the correct application of this regulation.

[00:01:57] Speaker 01:
But he never made a motion to reconsider or reopen the 1980 claim, did he?

[00:02:02] Speaker 03:
No, he did not.

[00:02:03] Speaker 03:
And this is a remedial regulation, which we do not believe requires that, but requires the VA to take the affirmative responsibility when they, as they did in this case, receive supplemental service department records

[00:02:18] Speaker 03:
that had not been considered at the time of the VA's first decision.

[00:02:22] Speaker 04:
In his 1980 claim, did Mr. Arribas Rivera claim PTSD or present a diagnosis of PTSD?

[00:02:30] Speaker 03:
He described what would be considered post-traumatic stress disorder.

[00:02:35] Speaker 03:
I believe he called it delayed stress something or other, and described that it came from his experiences in combat.

[00:02:43] Speaker 03:
There is no record of a diagnosis having been made.

[00:02:47] Speaker 03:
But I would direct the court's attention to the fact that this decision was made on March the 7th of 1980 and was disposed of by the VA on March the 27th.

[00:02:59] Speaker 03:
There is no indication that there was ever an examination of Mr. Arribas Rivera to determine whether he did or did not have that condition.

[00:03:09] Speaker 03:
There is a reference in the decision

[00:03:12] Speaker 03:
that says that no VA examinations provided a diagnosis of mental disorder, but there was no mental disorder examination conducted in this case.

[00:03:22] Speaker 04:
Was it reasonable to expect the VA to screen battalion records without any guidance from the appellant to find evidence of in-service stressors?

[00:03:33] Speaker 03:
In 1980, I believe it was, Your Honor.

[00:03:36] Speaker 03:
There was no requirement in the regulation at that time that the veteran provide that additional information.

[00:03:44] Speaker 03:
That didn't happen.

[00:03:45] Speaker 01:
But he has never made a claim, and you haven't made a claim, that there was some error committed at the time because of a failure to provide for a medical review.

[00:03:57] Speaker 03:
Oh, no.

[00:03:58] Speaker 03:
No, there was not, Your Honor.

[00:03:59] Speaker 01:
Right.

[00:03:59] Speaker 01:
So the problem is, even if I agree with you that he gave them enough information to know what medical records to look for, I mean, service records, when we're only talking about four months of combat, the problem is that there still would not have been a diagnosis of PTSD.

[00:04:20] Speaker 03:
But the diagnosis would be attendant upon the reconsideration.

[00:04:25] Speaker 03:
Yes, there was no diagnosis.

[00:04:26] Speaker 01:
But you didn't in the reconsideration.

[00:04:28] Speaker 01:
You never said that there was error because of failure to actually provide a medical evaluation.

[00:04:36] Speaker 03:
No.

[00:04:36] Speaker 03:
What was requested in accordance with 3.156

[00:04:40] Speaker 03:
was reconsideration under the terms and provisions of that regulation.

[00:04:45] Speaker 01:
OK, I can look at his service records until I'm blue in the face.

[00:04:48] Speaker 01:
And what is that going to tell me about his actual medical diagnosis?

[00:04:52] Speaker 03:
Well, the government included in the joint appendix the provisions of the then manual

[00:05:07] Speaker 03:
for rating practices and procedures, pages 158 to 160.

[00:05:13] Speaker 03:
And in those pages, they describe post-traumatic stress disorder and its specific relationship to combat.

[00:05:22] Speaker 03:
Now, even if there was an examination, that examination would have been required to deal with those requirements as specified in that provision.

[00:05:33] Speaker 03:
Now, if the service medical records showing that he was in combat were not available to the examiner, it would not have been possible for that examiner to have complied with that rule.

[00:05:45] Speaker 03:
Now, I suppose there is a pending question as to whether or not that manual provision has any effect of law, but certainly in 1980, that was the way in which it was relied upon, and that's why the government has included it in the Joint Appendix.

[00:06:01] Speaker 03:
because that was the procedure for determining whether or not a person suffered from post-traumatic stress disorder.

[00:06:08] Speaker 03:
Now there is, as I say, no indication that there was ever an examination conducted.

[00:06:14] Speaker 03:
So we don't know whether or not these manual provisions were or were not applied by the examiner because we have no examination.

[00:06:22] Speaker 03:
But there was nothing in the record at that time.

[00:06:26] Speaker 03:
But the point of 3.156C is to trigger affording the veteran a new consideration of his original claim.

[00:06:36] Speaker 03:
And the language of 3.156C is that it will reconsider the original claim, a claim that was decided without the benefit of relevant service department records.

[00:06:48] Speaker 03:
These are clearly relevant service department records because they confirm that he was in combat

[00:06:55] Speaker 03:
uh... and his unit was in combat.

[00:06:58] Speaker 02:
I'm sorry, Mr. Carpenter, I thought that this was in the context of a request for an earlier effective filing date for the award of PTSD that stemmed from the 2007 diagnosis.

[00:07:12] Speaker 02:
I thought that this entire case was framed as we're entitled to an earlier effective filing date for this claim of PTSD.

[00:07:20] Speaker 02:
Am I mistaken?

[00:07:23] Speaker 03:
I don't know whether you're mistaken, Your Honor, but I believe that it was mistaken to have framed it that way.

[00:07:29] Speaker 03:
The operation of 3.156C does not relate to a new adjudication.

[00:07:36] Speaker 03:
3.156C only discusses the reconsideration of the original claim.

[00:07:43] Speaker 02:
I'm sorry, did you not seek an earlier effective date in this case?

[00:07:49] Speaker 02:
Is that not what you were pursuing?

[00:07:51] Speaker 02:
Yes.

[00:07:52] Speaker 02:
So an earlier effective date is for the claim that he was awarded benefits for, PTSD, correct?

[00:08:00] Speaker 02:
They are inextricably linked.

[00:08:02] Speaker 02:
Are they not?

[00:08:03] Speaker 03:
They are, Your Honor.

[00:08:04] Speaker 02:
So once again, it goes back to the original question I asked you.

[00:08:09] Speaker 02:
If the original PTSD claim is a different claim, even if I grant you that it's an original PTSD, if it's a different claim than this claim,

[00:08:19] Speaker 02:
And on this claim, you're seeking an earlier effective date.

[00:08:22] Speaker 02:
That is the context of this dispute, as I understand it.

[00:08:26] Speaker 02:
And I'm still struggling with why 3.156C applies at all, even if I give you the retroactive application of the one that was in place at the time, because it's talking about reconsideration of decisions.

[00:08:40] Speaker 02:
And the board found these are two different claims.

[00:08:43] Speaker 03:
In the original version of 3.156C,

[00:08:49] Speaker 03:
relationship to effective date for a later award was not clear.

[00:08:56] Speaker 03:
When the VA amended the regulation, they separated it out into three specific subsections.

[00:09:03] Speaker 03:
Under subsection one, it is reconsideration.

[00:09:06] Speaker 03:
Under subsection two, it is a provision to preclude reconsideration.

[00:09:11] Speaker 03:
It is not until you get to subsection three that you get the consideration of the earlier effect.

[00:09:18] Speaker 04:
But in seven and eight of your blue brief, you quote 3.156C and emphasize this provision is not afflictable where there was no administrative error because the records were not reasonably identified.

[00:09:33] Speaker 04:
And it seems to me that you concede that you'd lose under that provision.

[00:09:41] Speaker 04:
if it was a, you say it's not applicable.

[00:09:46] Speaker 03:
But no, I don't believe that would, I'm sorry, if I left the Court with that inference, I apologize.

[00:09:52] Speaker 03:
The point was that that's what the provision calls for.

[00:09:57] Speaker 03:
I did not mean to concede or imply a concession that it would have been correctly applied now.

[00:10:04] Speaker 04:
You say, well, this is a correct interpretation, a 3.156C2.

[00:10:09] Speaker 04:
It is correct only as of the date it was published.

[00:10:14] Speaker 03:
And I'm sorry, what I was trying to say it was is that the preclusive effect of having not provided the information did not exist at law until the VA amended that regulation.

[00:10:28] Speaker 04:
In 1980, 38 CFR 4.126 provided, quote, it must first be established that a true mental disorder exists in

[00:10:39] Speaker 04:
Also, quote, that the disorder will be diagnosed in accordance with the American Psychiatric Association manual.

[00:10:47] Speaker 04:
Correct.

[00:10:47] Speaker 04:
In Young v. McDonald, we said, there is no question of retroactivity here because a medical diagnosis of PTSD was required to establish the veteran's entitlement, and the veteran's court did not err in approving the board's decision to assign an effective date, and so on.

[00:11:08] Speaker 04:
Now, given that what you're asking appears to be that the AIM searches his records without any pointer to where they should be going, his unit records, how on earth could you make that argument?

[00:11:27] Speaker 03:
Well, because, Your Honor, that's precisely what the Secretary said was the entire reason that he promulgated this regulation.

[00:11:36] Speaker 03:
The regulation was created for a single objective to cure an administrative deficiency when the VA did not, in its original decision, do precisely that, search the records to get all relevant service records.

[00:11:52] Speaker 03:
And when they fail to get those relevant service records, then the provisions of 3.156C are available to the veteran downstream at some later date when the records are produced and the VA receives them.

[00:12:07] Speaker 03:
At that time, the provisions of now 3.1561 go into effect and require reconsideration because there was an administrative deficiency in the VA having not done exactly that.

[00:12:22] Speaker 01:
So you're saying without even a request for reconsideration that there is an affirmative obligation to engage in the exercise under the regulation?

[00:12:32] Speaker 03:
I'm sorry.

[00:12:32] Speaker 03:
I didn't get the first part.

[00:12:33] Speaker 01:
Without a request for reconsideration?

[00:12:35] Speaker 03:
Yes.

[00:12:36] Speaker 03:
Yes.

[00:12:36] Speaker 03:
Yes.

[00:12:37] Speaker 02:
Mr. Carpenter, would you like to say a few words?

[00:12:39] Speaker 03:
I would, Your Honor.

[00:12:40] Speaker 03:
Thank you very much.

[00:12:40] Speaker 02:
Mr. Rosenberg, please proceed.

[00:12:52] Speaker 00:
May it please the Court.

[00:12:55] Speaker 00:
The Court is picking up on one of the essential problems with this appeal, which is the dispositive backbinding below.

[00:13:02] Speaker 00:
that the 2007 claim was a new claim that did not encompass the 1980 claim for PTSD.

[00:13:08] Speaker 00:
A new claim, by definition, cannot trigger any reconsideration under 3.156C.

[00:13:15] Speaker 00:
And consequently, Mr. Arribas-Rivera was not entitled to any relief under that regulation, because the regulation, as the Veterans Court found, was not for application.

[00:13:25] Speaker 00:
The court could affirm on that basis alone.

[00:13:27] Speaker 01:
But if you look at C1, it says notwithstanding any other

[00:13:32] Speaker 01:
section in this part, and then it just proceeds on what the VA is supposed to do if it gets new information.

[00:13:40] Speaker 01:
Isn't that enough to just say that if there's any claim out there, even if there hasn't been a motion for reconsideration of it, that the regulation applies?

[00:13:48] Speaker 00:
3.156C refers to a decision on a claim.

[00:13:54] Speaker 00:
And the only decision on a claim in this case prior to the claim filed in 2007 was a claim for a nervous disorder.

[00:14:01] Speaker 00:
So unless Mr. Arribas-Rivera was seeking reconsideration of a claim for nervous disorder, which the Veterans Court found he was not, then 3.156C is not implicated.

[00:14:10] Speaker 02:
Was it a claim for a nervous disorder or a claim for a delayed stress reaction?

[00:14:16] Speaker 00:
Mr. Arribas-Rivera used the phrase delayed stress reaction in describing a physical ailment of cervical myositis, which is muscle weakness in his neck.

[00:14:26] Speaker 00:
What the RO did was liberally construe what appeared to be a claim focused on a physical ailment and found in that claim for physical ailment a claim for a nervous disorder, which was one of the psychoneurotic disorders that would support a claim for service connection.

[00:14:45] Speaker 00:
They looked at his service medical records, and they looked at an August 79 medical examination.

[00:14:49] Speaker 02:
A delayed stress reaction?

[00:14:51] Speaker 02:
Those are the words he uses, and he puts them in quotes.

[00:14:53] Speaker 02:
I think that means he's trying to identify something in specific in his filing below in the 1980 filing.

[00:15:03] Speaker 02:
A delayed stress reaction doesn't seem to me like a nervous condition, right?

[00:15:10] Speaker 02:
He mentions earlier how he's always been a nervous person, but then he says that he has a delayed stress reaction, a condition that also affects ex-military members from the Vietnam War.

[00:15:21] Speaker 02:
Do you think that is properly interpreted as a nervous condition?

[00:15:25] Speaker 00:
Well, the interpretation of his claim is vested in the VA.

[00:15:31] Speaker 00:
And so the court under 7292D2 probably should not be looking beyond the factual findings of the board and the Veterans Court.

[00:15:36] Speaker 00:
But if the court is going to look specifically at the claim that he filed, it's very clear the connection between this delayed stress reaction and the physical ailment.

[00:15:45] Speaker 00:
It is not characterized.

[00:15:47] Speaker 00:
And I don't think the VA was wrong in construing it.

[00:15:50] Speaker 00:
not to allege a post-traumatic stress disorder type claim.

[00:15:55] Speaker 00:
He says, I'm always a nervous and anxious person.

[00:15:57] Speaker 00:
And that language, that word nervous, is teased out of the claim and appears in the rating decision.

[00:16:03] Speaker 00:
If the court looks at the diagnostic codes in section 4.126, which were in place at the time of the claim, there is no nervous disorder

[00:16:12] Speaker 00:
There's anxiety neurosis and a bunch of other psychoneurotic.

[00:16:16] Speaker 01:
But what about Mr. Carpenter's argument that in 1980, what the general practice was to do is to look at the stressors to which the claimant was exposed before assessing whether or not what the nature of the stress claim is.

[00:16:32] Speaker 00:
So the problem with that argument is that if we were looking at this under the framework for establishing a PTSD claim,

[00:16:39] Speaker 00:
The very first part of establishing a PTSD claim is a diagnosis of PTSD.

[00:16:44] Speaker 00:
The second part of that claim is identifying an in-service stressor and then verifying the in-service stressor.

[00:16:49] Speaker 00:
Now, you could have PTSD.

[00:16:50] Speaker 01:
Well, but is it PTSD?

[00:16:51] Speaker 01:
I mean, we've gone through so many times with veterans cases.

[00:16:55] Speaker 01:
PTSD is partially diagnosed by the circumstances that the individual faced.

[00:17:01] Speaker 01:
I mean, you can't figure out if someone has PTSD until you understand that there have been stressors to which they've been exposed.

[00:17:08] Speaker 00:
That's precisely right.

[00:17:09] Speaker 00:
And it's possible that Mr. Arribas Rivera could have been diagnosed with PTSD in 1980 on the basis of a stressor that would support a diagnosis of PTSD that had nothing to do with his service in Vietnam.

[00:17:20] Speaker 00:
So he could have had a diagnosis in 1980 of PTSD based on some other trauma he suffered in his life independent of his service in Vietnam.

[00:17:28] Speaker 00:
And he would have had a diagnosis of PTSD in 1980.

[00:17:30] Speaker 00:
The next part of the analysis would be to determine whether the PTSD was caused by an in-service stressor.

[00:17:36] Speaker 00:
That's the second part of the analysis.

[00:17:37] Speaker 01:
No, no.

[00:17:40] Speaker 01:
The analysis is an overall analysis of stressors to which one was exposed and their reactions to the various stressors.

[00:17:49] Speaker 01:
So you can't say he has to be diagnosed from non-service stressors and then go and see if there was a service stressor.

[00:17:58] Speaker 01:
That's backwards.

[00:17:59] Speaker 00:
I don't mean to imply that there has to be some non-service stressor to support a PTSD diagnosis.

[00:18:04] Speaker 00:
What I'm trying to say is... Isn't it true that

[00:18:07] Speaker 04:
The way the VA starts is with indicia.

[00:18:11] Speaker 04:
That is to say, inability to sleep, startled reactions, fear of crowds.

[00:18:25] Speaker 04:
There's a list of indicia for PTSD.

[00:18:28] Speaker 04:
And if somebody comes in and says, jeez, I startle when somebody walks into the room,

[00:18:35] Speaker 04:
I'm afraid to be in a crowd or those kinds of things, they say, huh, looks like you have PTSD.

[00:18:43] Speaker 04:
What kind of exposures did you have?

[00:18:46] Speaker 04:
That's what you're saying in effect, isn't it?

[00:18:48] Speaker 00:
What I'm saying is that a PTSD diagnosis depends not only on the stressor, but as your honor is mentioning, an array of symptomatology that's consistent with that diagnosis.

[00:18:57] Speaker 00:
And symptoms can overlap between different kinds of neuroses.

[00:19:01] Speaker 00:
When Mr. Ebus Rivera presented for a complete medical exam in August of 79, and they found no psychoneurotic or neurological problems with him, that would have encompassed any symptomatology that he presented with at that time.

[00:19:14] Speaker 00:
And that symptomatology might have been consistent with PTSD.

[00:19:17] Speaker 00:
It might have been consistent with something else.

[00:19:19] Speaker 00:
But the conclusion made by the medical professionals was that he had no psychiatric disorder at that time.

[00:19:24] Speaker 00:
That was very close in time to the time he filed his March 1980 claim.

[00:19:29] Speaker 00:
Back to your honor's question, I don't mean to imply that Mr. Arribas Rivera had to show that he had PTSD independent of his service in Vietnam.

[00:19:37] Speaker 00:
What I mean to say is when he presented for a complete medical exam in 1979, and the medical professionals had no reason to diagnose him, or suspected he had a psychiatric disorder, there was no need to go to the second part of the analysis of establishing service connection with PTSD, which would be to verify that an inservice customer occurred.

[00:19:54] Speaker 02:
Well, he said he had no reason to diagnose him.

[00:19:55] Speaker 02:
He reports, the symptoms he reports is tense, nervous, tired, irritable, depressed, and then he calls it a delayed stress reaction, a condition that also affects ex-military members from the Vietnam War.

[00:20:07] Speaker 02:
Hard for me to imagine that those doctors had no reason, as you just said, to diagnose him with PTSD, according to this record.

[00:20:14] Speaker 00:
Respectfully, Your Honor, I think the RO did correctly and liberally construe the claim for cervical myositis to be principally focused on the claim for a physical disorder.

[00:20:25] Speaker 00:
and liberally construing that claim for physical disorder, identified this claim for a nervous disorder, and found no evidence to support a claim for nervous disorder, and on that basis denied the claim.

[00:20:36] Speaker 00:
And this is a very important aspect of this case, because the application of subsection C1 turns on whether later associated service records remedy a defect in the original claim.

[00:20:47] Speaker 01:
No, it doesn't say, does it remedy a defect in the original claim.

[00:20:50] Speaker 01:
It says, is it associated with the original claim?

[00:20:53] Speaker 01:
That's all it says.

[00:20:54] Speaker 01:
And then you've got to go back and look.

[00:20:57] Speaker 01:
And so it doesn't say, does it remedy a defect in your original claim?

[00:21:00] Speaker 01:
That's new words that you've interpreted into the statute.

[00:21:04] Speaker 00:
That language, Your Honor, comes from the court's decision in Blue Ball and as applied in the court's decision in Kaiser.

[00:21:10] Speaker 00:
So in order for C1 to apply, the later Associated Service records have to, in some capacity, remedy the defect in the original claim in order to trigger some kind of relief under C1.

[00:21:21] Speaker 00:
Mr. Arepas-Rivera's later Associated Service records, which were used to verify a stressor which the Veterans Court found and the Board found he did not identify until 2007, did not provide the diagnosis that was found to be missing in 1980 and which served as the basis for denying his claim in 1980.

[00:21:37] Speaker 00:
So under the application of Blue Ball and Kaiser, the later Associated Service records didn't remedy the defect and consequently, again, subsection C was not for application.

[00:21:50] Speaker 04:
I'm curious about the standard by which we are bound on factual issues.

[00:21:58] Speaker 04:
If a veteran presents to the VA for PTSD, and they say, well, you couldn't because you were never in combat.

[00:22:10] Speaker 04:
And the veteran says, well, here's my Purple Heart, and I'm missing a limb.

[00:22:17] Speaker 04:
And the Purple Heart says this was awarded for losing his limb.

[00:22:22] Speaker 04:
Are we bound by the VA's finding when it's simply, clearly false?

[00:22:28] Speaker 00:
As unpleasant as that might seem under 7292D2, the answer to that is yes.

[00:22:34] Speaker 00:
One would hope that the board wouldn't make a factual finding like that in the face of what seems to be compelling evidence of an in-service injury.

[00:22:41] Speaker 00:
And if it did, that the Veterans Court would correct a clear error of fact on appeal to the Veterans Court.

[00:22:45] Speaker 00:
But on appeal from the Veterans Court to this court, 7292D2 does restrict the court's ability to look at factual findings.

[00:22:52] Speaker 00:
And if there's some dispute about whether that factual finding is correct or not, that's precisely why 7292 D2 prevents the court from applying law to those facts.

[00:23:00] Speaker 00:
So in this case, in 1980, the issue of combat or in-service stressor was not an issue in the adjudication of his claim.

[00:23:09] Speaker 00:
Again, the claim was denied in 1980 because he had no diagnosis of any psychiatric disorder, whether you characterize it as an anxiety neurosis or a nervous disorder or delayed stress reaction or PTSD.

[00:23:19] Speaker 00:
There was no diagnosis to support the claim.

[00:23:21] Speaker 00:
The claim wasn't plausible.

[00:23:22] Speaker 00:
And that's where the analysis ended.

[00:23:24] Speaker 01:
And so we have to accept that, is what you're saying, even if they looked at these service records and realized he'd been in combat for four months, that the indication of the potential for stressors would have been even stronger.

[00:23:38] Speaker 00:
Your Honor raised a good question earlier about whether there's any allegation that the VA should have provided a medical exam in the face of the allegation of a delayed stress condition.

[00:23:48] Speaker 00:
That sounds like a cue claim.

[00:23:50] Speaker 00:
But this is not a cue claim.

[00:23:51] Speaker 00:
And if it were a cue claim, it would be subject to a very high standard that Mr. Ives-Rayer wouldn't be able to satisfy.

[00:23:56] Speaker 00:
But it's conceded that they're not presenting that kind of argument.

[00:24:01] Speaker 00:
The question is, when he alleges some symptomatology that may or may not be consistent with PTSD, is that enough, or was that a reason for the VA to grant service connection for a nervous disorder in 1980?

[00:24:17] Speaker 00:
In the absence of a diagnosis under subsection 4.126, without a diagnosis of a mental disorder, you can't have a claim for mental disorder.

[00:24:32] Speaker 00:
Finally, the court hasn't asked any questions about retroactivity, but there simply is no retroactivity problem in this case, because although Mr. Rivas Rivera filed his original claim in 1980 before the regulation was amended,

[00:24:47] Speaker 00:
he never exercised his right to seek reconsideration until after the regulation was amended in 2007.

[00:24:52] Speaker 00:
So when Princess Cruises talks about an impairment of vested rights, Mr. Rivas-Rivera certainly had a right to reconsideration between 1980 and 2007.

[00:25:01] Speaker 02:
Are you suggesting to me that if I, even if no one brought it to my attention, if I realized

[00:25:10] Speaker 02:
that the board was applying the wrong law, although it was not in effect at the time and it was materially different from the law that ought to apply, that I am somehow bound, regardless of when or if anyone brought it up, that I am bound to continue to accept the wrong law on appeal?

[00:25:30] Speaker 00:
Your Honor.

[00:25:31] Speaker 02:
I don't have the right to sui sponte say, time out.

[00:25:35] Speaker 02:
You applied the wrong law.

[00:25:36] Speaker 02:
Go back and fix it.

[00:25:37] Speaker 00:
This goes beyond some realization.

[00:25:41] Speaker 02:
Answer my question.

[00:25:43] Speaker 02:
Are you telling me as a judge on an appellate court, I don't have the right to tell a lower tribunal it applied the wrong law?

[00:25:49] Speaker 00:
No.

[00:25:50] Speaker 00:
No, Your Honor.

[00:25:50] Speaker 02:
I don't have that right.

[00:25:52] Speaker 00:
No, I'm saying you do have the right.

[00:25:53] Speaker 00:
I'm not disagreeing with you.

[00:25:54] Speaker 02:
Okay.

[00:25:55] Speaker 02:
So then what does it matter whether he likewise told them to apply the wrong law?

[00:26:00] Speaker 02:
If I think they applied the wrong law,

[00:26:03] Speaker 02:
I can send it back, regardless of whether below he acquiesced in the wrong law being the appropriate one.

[00:26:10] Speaker 00:
Your Honor, your question seems to be going to the argument on waiver.

[00:26:13] Speaker 00:
And I'm making a different point, which is on the actual application of Princess Cruises.

[00:26:18] Speaker 00:
So if the court gets beyond our argument that the argument is waived, applying Princess Cruises, what we're saying is there is no retroactivity problem.

[00:26:27] Speaker 00:
that Mr. Rivas Rivera didn't seek to exercise his right to reconsideration until after the regulation had changed.

[00:26:32] Speaker 00:
And consequently, there was no impairment of any vested right to reconsideration.

[00:26:36] Speaker 00:
It's distinct from Klein, and it's distinct from Mayhew, because in those cases, the claimants filed their request for reconsideration and got service connection before the regulation was amended.

[00:26:46] Speaker 00:
And during the pendency of their appeal, the regulation changed and subsequently was applied to them.

[00:26:52] Speaker 00:
The veterans court found that that was an improper retroactive application.

[00:26:55] Speaker 01:
Even if we agreed with your retroactivity analysis, which I'm not sure that I do, I don't understand how the veteran could have done more in terms of pointing the VA to veterans records than to say, I was in combat for a four-month period in Vietnam.

[00:27:12] Speaker 01:
I mean, how hard is it for them to pull those service records?

[00:27:18] Speaker 01:
you know, the notion that he's got to say something more detailed to satisfy that regulation, I think, is completely illogical.

[00:27:27] Speaker 00:
That, Your Honor, respectfully involves an application of law to fact, but it ultimately doesn't resolve the principle defect in his claim in 1980, which was the absence of a medical diagnosis.

[00:27:37] Speaker 00:
So at the risk of being repetitive, the reason why his claim in 1980 was denied was because he didn't have a medical diagnosis, and the later Associated Service records did not provide

[00:27:45] Speaker 00:
the diagnosis that was found to be missing in 1980.

[00:27:47] Speaker 04:
Wouldn't it be automatic if someone says, I was in combat, to say, what unit?

[00:27:55] Speaker 00:
I'm afraid I don't know the answer to that question.

[00:27:58] Speaker 00:
But in evaluating a claim for PTSD or any other psychoneurotic disorder, the first step of the analysis is, is there a diagnosable psychoneurotic disorder?

[00:28:08] Speaker 00:
And then to determine service connection.

[00:28:10] Speaker 02:
All right.

[00:28:11] Speaker 02:
Thank you very much.

[00:28:11] Speaker 02:
Thank you.

[00:28:12] Speaker 02:
Mr. Carpenter, you have some rebuttal time.

[00:28:18] Speaker 03:
I'd only like to focus on one matter, Your Honor, and that's the notion that the government has asserted here that the veteran or any veteran is required to exercise his right to reconsideration under 3.156z.

[00:28:33] Speaker 03:
I see no such language in 3.156z, either in the amended version or in the prior version, original version.

[00:28:41] Speaker 01:
Even if that's true, even if that's completely true, even if we agree with you on retroactivity or even if

[00:28:47] Speaker 01:
If it is retroactive that we agree with your interpretation and not the government's interpretation of the statute, we still have the medical diagnosis problem.

[00:28:56] Speaker 01:
And why shouldn't this have been a cue claim as it relates to the failure to provide a medical evaluation?

[00:29:11] Speaker 03:
because there was no decision by the VA in which to file a Q claim.

[00:29:18] Speaker 03:
The only decision of the VA would have been the 1980 decision.

[00:29:22] Speaker 01:
That's what I'm talking about.

[00:29:23] Speaker 03:
Well, but the only decision, excuse me, the only attack would have been a duty to assist violation, which this Court has held is not sufficient to support a request for revision.

[00:29:34] Speaker 03:
Now, ironically, in the Cook case, there is some discussion about

[00:29:38] Speaker 03:
That might be different for duty to assist when it relates to service records.

[00:29:42] Speaker 03:
But ultimately, the point is that there is nothing in this record to suggest that there was a attempt to make a diagnosis.

[00:29:52] Speaker 03:
There is a reference in the decision to examinations that took place, as the government admits, for non-psychiatric claims.

[00:30:03] Speaker 03:
Why would a non-psychiatric evaluation give a psychiatric diagnosis?

[00:30:09] Speaker 03:
that this claim, which was received after the original physical claims were adjudicated, this claim in March of 1980 was for the delayed stress description that he offered.

[00:30:24] Speaker 03:
At that juncture, the VA had an obligation to get his full service records.

[00:30:31] Speaker 01:
There.

[00:30:31] Speaker 01:
But again, all the service records in the world, how does that change

[00:30:36] Speaker 01:
failure to have given him a full medical evaluation for emotional stressors.

[00:30:43] Speaker 03:
Because of the precise requirements that are in the record at 158 and 159 that describe how you diagnose post-traumatic stress disorder, which goes to the events that the veteran experienced.

[00:30:55] Speaker 03:
And if that information was not considered by a psychiatrist, then there was no way to meet that test as outlined in their own manual.

[00:31:05] Speaker 03:
Thank you very much.

[00:31:06] Speaker 04:
I have one last question.

[00:31:08] Speaker 04:
You've been around this block 10,000 times.

[00:31:10] Speaker 04:
I just want you to make me feel better.

[00:31:13] Speaker 04:
When somebody says to the VA, I was in combat in this war, they do ask them what unit you were in, don't they?

[00:31:21] Speaker 04:
Is the standard correct?

[00:31:25] Speaker 03:
Frankly, Your Honor, it depends on when they ask that question.

[00:31:28] Speaker 03:
The closer to Vietnam, the less likely that was for that question to be asked.

[00:31:32] Speaker 03:
There was tremendous resistance until the APA adopted the diagnosis, and for the first half dozen years or better, that was not a question.

[00:31:42] Speaker 03:
But in this case, I would point out that his DD214 does appear to be in there, and it shows his unit.

[00:31:49] Speaker 02:
Of course it does.

[00:31:50] Speaker 02:
Okay, thank you, Board Council.

[00:31:51] Speaker 02:
The case is taken under submission.