[00:00:00] Speaker 02:
Number 17-1802.

[00:00:03] Speaker 02:
Mr. Carpenter, when you're ready.

[00:00:06] Speaker 01:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Henry Conway.

[00:00:11] Speaker 01:
The issue in this case is whether or not a timely filed notice of disagreement can be expanded in a second filed notice of disagreement, which is made outside of the statutory one-year timeframe.

[00:00:24] Speaker 01:
In other words, we have a timely notice of disagreement and we have an untimely notice of disagreement.

[00:00:30] Speaker 01:
Mr. Conway's appeal does not dispute the language in 7105B that requires a notice of disagreement to have been filed within one year from the date of mailing of the VA's decision.

[00:00:41] Speaker 01:
Mr. Conway's appeal does seek an interpretation of 7105B that nothing within the plain language of that statute precludes what occurred in this case, which is merely an expansion of a timely filed notice of disagreement

[00:00:56] Speaker 01:
to include an additional issue that was not previously identified in the timely filed Notice of Disagreement.

[00:01:04] Speaker 02:
How do you respond to the language of the regulation 38 CFR 20.201, which states that your original Notice of Disagreement should have identified the specific determinations with which the claimant disagrees?

[00:01:23] Speaker 01:
I believe that that regulation applies only to the substantive appeal and does not apply to the Notice of Disagreement.

[00:01:31] Speaker 01:
That the function of the Notice of Disagreement is only to put the government on notice, put the VA on notice, that there is an intention to potentially appeal a decision.

[00:01:42] Speaker 01:
The language of the regulation pertains to the identification of issues when the appeal is completed with the substantive appeal and therefore

[00:01:53] Speaker 01:
That does not apply in this context, but only applies when you have finished your appeal.

[00:02:01] Speaker 00:
I'm missing something, Mr. Perp.

[00:02:04] Speaker 00:
20.201 notice of disagreement is a definition of a notice of a disagreement.

[00:02:12] Speaker 00:
The regulation was promulgated because there was an appreciation of the fact that notice of disagreement had not been defined in the statute.

[00:02:21] Speaker 00:
It's a definition.

[00:02:24] Speaker 01:
Yes.

[00:02:25] Speaker 00:
And it doesn't have a definition that applies at one stage of the proceedings as opposed to another stage of the proceedings.

[00:02:31] Speaker 00:
It applies to all stages of the proceedings.

[00:02:35] Speaker 01:
Yes, Your Honor.

[00:02:36] Speaker 01:
And all it requires is that the Notice of Disagreement itself contain that information.

[00:02:42] Speaker 01:
Perhaps I was not clear.

[00:02:44] Speaker 01:
What I'm suggesting is that there's no difference.

[00:02:46] Speaker 00:
There's a mandatory language that says,

[00:02:49] Speaker 00:
You know the regulation as well as I do.

[00:02:51] Speaker 00:
The specific determinations with which the claimant disagrees must be identified.

[00:02:57] Speaker 01:
Yes, and they were in both filings.

[00:03:01] Speaker 01:
The question is whether or not the second filing is somehow out of time because what was identified in the second filing was not identified in the first.

[00:03:14] Speaker 01:
The question here is what is the function of

[00:03:17] Speaker 01:
that information for the government.

[00:03:20] Speaker 01:
The function of that information is so the government can prepare a statement of the case.

[00:03:25] Speaker 01:
The statement of the case under the facts of this case, and unfortunately has been the circumstance for some time, was 29 months after the filing of the Notice of Disagreement.

[00:03:36] Speaker 01:
So there was no prejudice to the VA in not knowing

[00:03:40] Speaker 01:
between filing one and filing two of the specific information.

[00:03:45] Speaker 02:
But are we supposed to look at whether there's prejudice?

[00:03:48] Speaker 02:
I mean, we've got a regulation with very clear language in it.

[00:03:54] Speaker 02:
And I understand your point.

[00:03:56] Speaker 02:
I truly do.

[00:03:57] Speaker 02:
But it says specifically, it defines what the notice of disagreement is.

[00:04:02] Speaker 02:
And it says if there's adjudicative determinations on several issues at the same time,

[00:04:07] Speaker 02:
the specific determinations with which the claimant disagrees must be identified.

[00:04:12] Speaker 02:
And here, a specific determination was identified.

[00:04:17] Speaker 02:
It wasn't a general identification of all three time periods, for example.

[00:04:23] Speaker 02:
There was just an identification of one.

[00:04:25] Speaker 02:
and the others weren't mentioned.

[00:04:28] Speaker 01:
That's correct.

[00:04:29] Speaker 01:
And the question then becomes, is there some reason that the requirement to identify that cannot be extended beyond the one year?

[00:04:41] Speaker 01:
That regulation does not say must be identified in that one year period.

[00:04:48] Speaker 01:
It simply says that you have to identify

[00:04:51] Speaker 01:
with some degree of specificity, which determination.

[00:04:55] Speaker 01:
So in filing one, there was that specificity, and in filing two in this case, there was the specificity.

[00:05:02] Speaker 01:
The question here is whether or not the statute excludes the possibility of... Is there any time requirement, Mr. Carpenter, on the filing of the second one?

[00:05:13] Speaker 01:
I think it would have to be filed before the statement of the case has been submitted by the VA.

[00:05:18] Speaker 01:
No, I do not believe there is any specific time frame.

[00:05:22] Speaker 00:
That could be five years afterwards.

[00:05:25] Speaker 01:
Well, if the statement of case had not been issued, and unfortunately there are cases in which the statement of case wasn't issued for more than five years, but... The statement of case is issued before they're not, right?

[00:05:38] Speaker 01:
In response to the Notice of Disagreement.

[00:05:40] Speaker 01:
That's correct, Your Honor.

[00:05:42] Speaker 01:
And the point being that in this case, the VA was on notice

[00:05:46] Speaker 01:
in more than ample time to prepare the statement of the case.

[00:05:50] Speaker 00:
Okay, so let's assume you have a nod number one that deals with, say, issue number one.

[00:05:57] Speaker 00:
Say, for example, the veteran filed an initial claim for a disability with an arm and with a leg.

[00:06:03] Speaker 00:
Correct.

[00:06:04] Speaker 00:
And so the nod number one has the arm, okay?

[00:06:09] Speaker 00:
And that's filed within a year.

[00:06:10] Speaker 00:
Yes.

[00:06:11] Speaker 00:
So that's timely.

[00:06:12] Speaker 00:
And so that knob is on the arm, so there'll be an SOC on the arm.

[00:06:17] Speaker 00:
Nothing about the leg.

[00:06:18] Speaker 00:
Leg's quiet, right?

[00:06:20] Speaker 01:
Correct.

[00:06:21] Speaker 00:
10 years later, the veteran comes in and files a nod on the leg.

[00:06:27] Speaker 01:
It's out of time, Your Honor.

[00:06:29] Speaker 01:
There's no question.

[00:06:30] Speaker 01:
It's out of time.

[00:06:31] Speaker 01:
Because there was no notice of disagreement filed on that.

[00:06:35] Speaker 00:
Well, he wants to do it as an extension of the original notice of agreement.

[00:06:39] Speaker 00:
He comes in and says, I've got this expanded notice on violence.

[00:06:43] Speaker 01:
And he has done it within, prior to the time in which the VA has issued the statement of the case.

[00:06:49] Speaker 00:
No, no.

[00:06:51] Speaker 00:
There's never been a statement of the case on the leg issue.

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

[00:06:56] Speaker 00:
Because the nod was on the timely nod on the arm, statement of the case, goes on, goes on, goes on, goes on.

[00:07:03] Speaker 00:
But 7105B... And then I say five years later, they got a smart lawyer.

[00:07:08] Speaker 00:
sophisticated lawyer who, what else praise did they give you?

[00:07:11] Speaker 00:
There's a lot of it.

[00:07:13] Speaker 00:
Sophisticated lawyer comes in and says, well, I forgot to do anything about the leg back when I filed my original nod.

[00:07:20] Speaker 00:
I'm now going to file an expanded nod on the arm because I want to now get a statement of case on the leg.

[00:07:29] Speaker 00:
I want to go forward on the leg.

[00:07:32] Speaker 01:
7105B is clear that that notice of disagreement had to be filed within one year of that determination.

[00:07:40] Speaker 00:
To what determination?

[00:07:42] Speaker 00:
Your second knob, your expanded knob, is not within a year from the original time.

[00:07:50] Speaker 00:
Correct.

[00:07:50] Speaker 00:
That's why you got thrown out.

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

[00:07:53] Speaker 00:
And so what you're trying to do is to avoid that one-year time lag by saying, this is not a new knob, this is an expanded knob.

[00:08:00] Speaker 01:
in the time frame before the statement of the case is issued?

[00:08:04] Speaker 00:
Sure.

[00:08:05] Speaker 00:
Before the statement of the case, in my case, on the lake.

[00:08:08] Speaker 01:
Yes.

[00:08:09] Speaker 00:
So all I'm trying to do is to figure out, you know, with Commissioner Carver, I always like to know how many hundred thousand cases are backed up in your shop.

[00:08:19] Speaker 00:
And so it looks to me like there isn't any time limit on an expanded nod, provided the statement of the case hasn't been issued on the issue you're trying to put into your expanded nod.

[00:08:30] Speaker 01:
No, it's statement of the case on the determination, on the ratings action that was taken.

[00:08:37] Speaker 01:
That's what 7105B is about.

[00:08:41] Speaker 01:
You have one year to file the notice of disagreement on the rating decision that was made by the VA, whether that encompasses one issue or 50 issues.

[00:08:51] Speaker 00:
Well, the rating decision is the RO decision that turns you down.

[00:08:54] Speaker 01:
That's correct.

[00:08:55] Speaker 01:
And that included both of these issues, or in your hypothetical, both the arm and the leg.

[00:09:00] Speaker 00:
Your expanded nod was more than a year after the rating decision that you're now trying to get into the old nod.

[00:09:07] Speaker 01:
That's correct.

[00:09:08] Speaker 00:
So you're out of time.

[00:09:12] Speaker 00:
If you're keying from that date, the rating decision is the key date that triggers the one year.

[00:09:18] Speaker 00:
That doesn't have anything to do with the statement of the case.

[00:09:21] Speaker 01:
And the question?

[00:09:22] Speaker 01:
Yes.

[00:09:22] Speaker 00:
The statement of case comes well afterwards.

[00:09:24] Speaker 00:
After you do a Nod, the purpose of the statement of case is to help you get ready to go to the BVA.

[00:09:29] Speaker 01:
Right.

[00:09:30] Speaker 00:
So I don't understand what the statement of case has got to do with the timing requirement of one year from the RO.

[00:09:39] Speaker 00:
I don't see how you can bootstrap some extra time in here because the case either has or hasn't been issued.

[00:09:46] Speaker 01:
I am not asking to bootstrap additional time

[00:09:50] Speaker 01:
What I'm asking for is whether or not the language of the statute prohibits expanding.

[00:09:57] Speaker 00:
This court in Colorado... You want the benefit of the original filing date?

[00:10:02] Speaker 00:
Yes, because... You want the benefit of your original nod, which was timely filed within one year from the RO, that dealt with a bunch of issues.

[00:10:11] Speaker 01:
That's correct.

[00:10:13] Speaker 00:
And that's sufficient... And you, at the time that you filed your first nod, you were fully aware of Colorado and Ledford?

[00:10:20] Speaker 00:
Because you were here with Mr. Horan when they were being argued, and you were here in Majit as amicus curiae, right, when all those issues were ventilated.

[00:10:30] Speaker 01:
Yes.

[00:10:31] Speaker 00:
And you knew that if you filed, if you had two issues that had been adjudicated, two issues that the RO had decided on, and you only took one up, you knew which side of Claro and Ledford you fell off.

[00:10:43] Speaker 01:
Well, I'm not sure I would go quite that far because I do think that Calaro allows what took place here.

[00:10:51] Speaker 01:
The question is, Calaro was in a... No, I understand that.

[00:10:57] Speaker 01:
No, no, no, no.

[00:10:58] Speaker 01:
But you raise Calaro as to whether or not it was or wasn't applicable.

[00:11:01] Speaker 02:
And I was simply responding that I think that... Is Calaro one of the cases where their notice of disagreement was more general?

[00:11:09] Speaker 01:
It was more general.

[00:11:10] Speaker 01:
And then later there was an attempt to make a... And that was the reasoning of this court in Colorado that because... It does seem a little different here though, doesn't it?

[00:11:20] Speaker 02:
I mean, it's quite a bit different because your original notice of disagreement is a specific claim.

[00:11:27] Speaker 02:
And then you're trying to supplement that with a different specific claim.

[00:11:31] Speaker 01:
That's correct, Your Honor.

[00:11:32] Speaker 01:
And the question is, is in the context of veterans law, in the context of this statutory scheme, is it

[00:11:41] Speaker 01:
prejudicial to the government that the notice was provided at a date beyond the one year on the second issue.

[00:11:49] Speaker 02:
The problem is I don't understand why I'm looking at prejudice to the government.

[00:11:52] Speaker 02:
I think I'm supposed to just be interpreting the regulation, which is quite clear on its face, and not looking to see whether equity requires me to say, oh, they should have allowed this year because it's more fair.

[00:12:07] Speaker 01:
I'm sorry.

[00:12:07] Speaker 02:
There's no prejudice to the government.

[00:12:09] Speaker 02:
Where do you read in prejudice to the government into the regulation or the statute?

[00:12:15] Speaker 01:
It is the question of whether or not there is any prohibition that exists in the statute.

[00:12:21] Speaker 01:
The regulation does not speak to the time limit.

[00:12:25] Speaker 01:
The regulation merely speaks to specificity.

[00:12:29] Speaker 01:
The regulation does not affect the circumstances of whether or not the statute does or does not permit this.

[00:12:39] Speaker 01:
I see that because of the questioning I'm into my rebuttal time.

[00:12:41] Speaker 01:
I'd like to reserve some of that.

[00:12:44] Speaker 01:
Thank you.

[00:12:58] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:13:00] Speaker 03:
The question here is whether Mr. Conway should be excused from the statutory time limits for filing his notice of disagreement

[00:13:07] Speaker 03:
where he admittedly did not include the initial 50% rating in his first notice of disagreement.

[00:13:14] Speaker 03:
Because Mr. Conway specifically appealed only the reduction from the 100% rating for post-traumatic stress disorder in 2008, did not appeal the initial 50% rating, his notice of disagreement on that issue was untimely.

[00:13:33] Speaker 03:
Your Honor, it's a combination of both the statute and the regulation.

[00:13:36] Speaker 00:
But what in the statute supports your argument?

[00:13:39] Speaker 03:
Your Honor, 7105A specifically requires that a notice of disagreement be filed.

[00:13:45] Speaker 03:
I'm sorry.

[00:13:46] Speaker 03:
The notice of disagreement must be filed within one year pursuant to section 7105B.

[00:13:50] Speaker 00:
That's all it says, right?

[00:13:53] Speaker 00:
It does, Your Honor, but the section 7... The statute says you have to file a nod within a year, right?

[00:13:58] Speaker 03:
Correct, yes.

[00:13:59] Speaker 03:
The statute requires that a notice of disagreement be filed within one year, which is then defined in the regulation.

[00:14:06] Speaker 00:
Okay, and here we have Mr. Carbonell-Maffin's client timely filed a nod within a year of the RO decision as to some issues, correct?

[00:14:15] Speaker 00:
Yes, Your Honor.

[00:14:17] Speaker 00:
And what he's trying to do is to say he wants to supplement that original filing.

[00:14:22] Speaker 03:
Correct.

[00:14:23] Speaker 03:
We'll add an additional issue.

[00:14:25] Speaker 00:
He wants to supplement that because he realizes that his second nod was over a year from the RO decision.

[00:14:31] Speaker 00:
So he's very candid and admits that that's out of time.

[00:14:35] Speaker 00:
So he says, I want to supplement my initial nod.

[00:14:39] Speaker 00:
What in the statute stops him from supplementing a timely file nod with a later, untimely, later supplement?

[00:14:50] Speaker 03:
Well, Your Honor, Section 7105A states that appellate review is initiated by the notice of disagreement.

[00:14:58] Speaker 03:
The notice and the notice of disagreement must be filed within one year.

[00:15:01] Speaker 03:
But because Mr. Conway's notice of disagreement did not include the second issue, appeal on that issue was never initiated within the one year.

[00:15:09] Speaker 00:
What he's viewing this system as though the one year were like a statute of limitations for filing a cause of action.

[00:15:18] Speaker 00:
and you file a complaint, he's actually arguing he wants to be able to amend his complaint.

[00:15:23] Speaker 00:
And as you know, generally in litigation, for good cause shown, you're allowed to amend complaints.

[00:15:28] Speaker 00:
The amending that complaint doesn't go against the statute of limitations timing for having originally filed it.

[00:15:36] Speaker 00:
I think that's where he is.

[00:15:38] Speaker 00:
He's in the concept of an amended complaint.

[00:15:41] Speaker 03:
Well, Your Honor, I believe that an amended complaint is allowable in some circumstances if the complaint can be related back to the initial date of filing the complaint.

[00:15:49] Speaker 03:
But here, the appellate review was never initiated on the second issue because Mr. Conway did not file a notice of disagreement on that issue.

[00:16:01] Speaker 00:
Yeah, but aren't you morphing?

[00:16:03] Speaker 00:
That's why I asked you, where are your eggs?

[00:16:06] Speaker 00:
Which basket are you in?

[00:16:07] Speaker 00:
Are you in the statute?

[00:16:10] Speaker 00:
simply uses the word notice for disagreement, doesn't define the term.

[00:16:14] Speaker 03:
Correct, Your Honor.

[00:16:15] Speaker 00:
Am I correct in thinking that 38 CFR 20.201 is it fills a gap, if you will, it defines that term?

[00:16:23] Speaker 00:
It does, Your Honor, as this court found in... And I was adjudicated here as to whether that was a proper interpretation, right?

[00:16:31] Speaker 03:
Yes, Your Honor.

[00:16:33] Speaker 03:
And the language of the regulation, as was discussed earlier, requires that

[00:16:40] Speaker 03:
the specific determinations with which the claimant disagrees must be identified in the notice of disagreement.

[00:16:47] Speaker 00:
Do you think that the force of Mr. Carpenter's argument were he to succeed would allow him, for example, in my hypothetical, the arm and leg, to bring the leg issue back five years later and say, I'd like now to amend my original arm nod

[00:17:10] Speaker 00:
to add the leg.

[00:17:13] Speaker 03:
Your Honor, I believe that Mr. Carpenter's argument here appears to go even beyond what he had argued in the police.

[00:17:19] Speaker 00:
Well, I'm trying to get a hold of the consequences when you're representing the government.

[00:17:23] Speaker 00:
Isn't it so that Mr. Carpenter would be able to go into his files and look for all the cases in which, fewer than all of the RO determinations were actually nodded

[00:17:35] Speaker 00:
But so long as there was one timely nod, you could come back and add in any of those decisions from the RRO going back however far you wish to then put them into a nod and get a statement of the case and proceed.

[00:17:50] Speaker 03:
Your Honor, I do believe that Mr. Carpenter's argument here would suggest that you could bring a new issue much later as long as there was not a statement of the case.

[00:18:01] Speaker 00:
That's what I'm trying to get at.

[00:18:03] Speaker 00:
We hadn't talked about it earlier.

[00:18:05] Speaker 00:
Mr. Carpenter was talking about prejudice this way, prejudice that way.

[00:18:09] Speaker 00:
Unless I'm wrong, and either one of you can please correct me, the reason for the one-year timing on the need for a nod is that the agency has thousands and thousands of these cases, and the whole idea is to have some timely sense of what's going to happen with a veteran who disagrees with an oral determination.

[00:18:29] Speaker 00:
So there can be some timely processing for the benefit of the veteran, right, of these claims.

[00:18:35] Speaker 03:
Correct, Your Honor.

[00:18:36] Speaker 03:
The notice of disagreement is what initiates the appeal and starts the whole statement of the case process.

[00:18:43] Speaker 03:
But that process is very involved.

[00:18:45] Speaker 03:
It can include new medical information.

[00:18:47] Speaker 03:
It can include a new examination.

[00:18:49] Speaker 00:
From the check bird seat that we have looking down on the bottom of the pyramid, we know exactly how long it takes to do those things.

[00:18:58] Speaker 03:
Yes, Your Honor, and to allow a veteran to initiate a new notice of disagreement or a new appeal well into that process simply because a statement of the case had not been... The statement of the case hasn't been written, prepared yet.

[00:19:13] Speaker 02:
Is it really well into the process?

[00:19:15] Speaker 03:
Well, again, the statement of the case process includes all of the review of the information that's already in the file, new information provided by the veteran, potentially a new medical examination.

[00:19:27] Speaker 03:
you know, again, to allow a veteran to bring a new issue into the process, you know, after that process has begun, would simply slow the entire process down.

[00:19:41] Speaker 02:
But again- Can I ask you a different question, which is, I'm just trying to get a sense of how common of a problem this is.

[00:19:48] Speaker 02:
I think in, for example, analogizing this to a notice of appeal to this court,

[00:19:55] Speaker 02:
Most of the time you'll see that parties will just appeal the entire case, notice appeal from the judgment.

[00:20:01] Speaker 02:
How often does it occur that somebody files a notice of a disagreement that's not more general and is not raising all of the aspects of determination below?

[00:20:16] Speaker 03:
Your Honor, I'm not sure I can say exactly how common it is.

[00:20:20] Speaker 03:
I do know that

[00:20:22] Speaker 03:
In the cases that we've cited in our brief, typically the notices of disagreement have been read to only include the issue that was presented in the notice of appeal.

[00:20:31] Speaker 03:
In the Veterans Court decision in Jarvis and in Meckham v. Shinseki, the Veterans Court found that where a veteran was only appealing the earlier effective date, the veteran could not come in later and appeal the actual rating decision.

[00:20:50] Speaker 00:
I found over a hundred cases at the CAVC that involved this issue.

[00:20:55] Speaker 00:
And the BVA and the CAVC seems to be living in the Leadford-Clarone world and being able to figure out which cases fall on which side of the line.

[00:21:07] Speaker 03:
Correct, Your Honor.

[00:21:08] Speaker 03:
Those two cases read together with the regulation seem to allow for a broader notice of disagreement to include multiple issues.

[00:21:18] Speaker 03:
farther down the road, but as more specific notice of disagreement is, you know, the veterans have been held to this specific issue.

[00:21:25] Speaker 00:
That's a lot of brawling.

[00:21:26] Speaker 00:
What did you bring me in the first place?

[00:21:28] Speaker 00:
Exactly.

[00:21:29] Speaker 00:
That's what Clara was saying.

[00:21:31] Speaker 00:
We're going to have to figure when you don't tell me much about what it is you're trying to bring, we're going to be generous in allowing you to argue how much you were bringing up from the RO.

[00:21:40] Speaker 03:
Yes, Your Honor.

[00:21:40] Speaker 03:
And in this case specifically, Mr. Conway only addressed... We know what he did.

[00:21:46] Speaker 03:
Yeah, in 2008.

[00:21:46] Speaker 00:
He knows what he did.

[00:21:48] Speaker 03:
Again, because the rating decision on this case included multiple issues.

[00:21:56] Speaker 03:
Because Mr. Connolly only appealed the one specific issue, he should be held to only that issue on appeal.

[00:22:03] Speaker 03:
Because no appeal under Section 7105 was initiated, because there was no notice of disagreement timely filed.

[00:22:10] Speaker 00:
And this problem has been solved going forward with a new regulation, which is much more specific, right?

[00:22:16] Speaker 00:
There's a form that you have to use.

[00:22:19] Speaker 03:
Yes, Your Honor, there is now a form that could alleviate this.

[00:22:25] Speaker 00:
And if you use the form, then you're led for it.

[00:22:27] Speaker 00:
And if you don't use the form, you're Colaro, right?

[00:22:31] Speaker 00:
Under the new regulation?

[00:22:32] Speaker 03:
It may make it easier to specify the issue.

[00:22:34] Speaker 00:
No, but doesn't the new regulation provide that if you don't use the form, you don't get expelled?

[00:22:39] Speaker 00:
The veteran doesn't lose his or her rights.

[00:22:44] Speaker 00:
It's just that they're sort of falling back into Colaro land, aren't they?

[00:22:48] Speaker 03:
Right, Your Honor.

[00:22:50] Speaker 03:
If the new form is not used, then it would sort of depend on exactly what language the veteran used in the notice of discharge.

[00:22:55] Speaker 00:
Does the veteran have a choice to use the form?

[00:22:57] Speaker 00:
Maybe Mr. Carpenter knows the answer to that question.

[00:23:01] Speaker 03:
I am not sure, Your Honor.

[00:23:03] Speaker 00:
Well, the form is a trap for the unwary, right?

[00:23:06] Speaker 00:
You've fallen in the same problem that Mr. Carpenter's client has here.

[00:23:10] Speaker 00:
If you use the form and it's like checking the boxes and you only check two boxes, then you're out of luck.

[00:23:16] Speaker 00:
You can't raise anything else later.

[00:23:18] Speaker 03:
Yes, Your Honor, if you specifically identify the issues on the form.

[00:23:21] Speaker 00:
Whereas if you're smart enough not to use the form, then you presumably can bring up all the issues you want later.

[00:23:27] Speaker 03:
Well, I believe that the regulation talks about what can be reasonably construed by your notice of disagreement.

[00:23:34] Speaker 03:
And yes, if you're filing a broader, more general notice of disagreement, perhaps it can be reasonably construed to include more issues than a specific one.

[00:23:42] Speaker 03:
But again, that's not the situation that we have here.

[00:23:47] Speaker 03:
If there's no further questions, we ask the court to affirm the Veterans Court decision.

[00:23:53] Speaker 02:
Mr. Herberger?

[00:23:56] Speaker 01:
Well, I'm not sure that this problem is remedied by the new form or that it really creates the circumstance that you are addressing it.

[00:24:03] Speaker 00:
I wasn't certain that the form really got us out of the soup.

[00:24:07] Speaker 01:
Actually, it does, but you still have to use the form.

[00:24:11] Speaker 01:
And there is a sanction if you don't use the form.

[00:24:16] Speaker 01:
You can stay general.

[00:24:17] Speaker 01:
And just say, I generally appeal each of these determinate, but you have to identify each determination without specifying what it is about that that you're disagreeing with.

[00:24:29] Speaker 01:
There's a box to fill in if you wish to disagree with it.

[00:24:33] Speaker 01:
However, the processing concerns that are expressed by the government really have been ended by Congress in the new appeals reform legislation that goes into effect in February of next year, because appeals

[00:24:47] Speaker 01:
will only be initiated by a notice of disagreement in which you must specify in the notice of disagreement those issues.

[00:24:55] Speaker 01:
But the difference is that the regional office is no longer in the process.

[00:25:00] Speaker 01:
Those notices of disagreement will be filed directly with the board.

[00:25:04] Speaker 01:
So the board is now the appellate body and the regional office is only the adjudicative body.

[00:25:13] Speaker 00:
Increasing need for sophisticated counsel to help the veterans in the future.

[00:25:17] Speaker 01:
For a system that was intended to be veteran friendly, it has evolved that it becomes of necessity.

[00:25:28] Speaker 01:
I really have no further questions unless the court has further questions.

[00:25:34] Speaker 01:
Thank you very much, John.

[00:25:36] Speaker 02:
Thank you.