[00:00:01] Speaker 01:
The first case for argument this morning is 171523 Gallagher v. Wilkie.

[00:00:06] Speaker 01:
Mr. Stromza.

[00:00:06] Speaker 01:
Good morning.

[00:00:07] Speaker 01:
Good morning, Your Honor.

[00:00:25] Speaker 03:
May it please the court, Ron Stromza for the appellant, Anthony Gallagher.

[00:00:28] Speaker 03:
We're here today to address a very simple

[00:00:31] Speaker 03:
legal error made by the board and the Veterans Court in applying the wrong legal standard when determining the scope of Mr. Gallagher's 1992 claim for a lower back injury.

[00:00:44] Speaker 03:
Specifically, and this is Appendix 22, Your Honor, the board in ruling on the scope of his claim required that the veteran would to specifically identify sciatica or radiculopathy

[00:01:00] Speaker 03:
as opposed to generally citing the body part or the region, the lower back pulled, the lower back strain?

[00:01:09] Speaker 01:
Well, unless I'm confusing, there are a lot of issues presented in this case.

[00:01:13] Speaker 01:
You can correct me if I'm just wrong.

[00:01:15] Speaker 01:
But as I understand the answer, the government's response to your position is, no, that's not what it did.

[00:01:22] Speaker 01:
that it did not require the board of the CABC did not say you had to call out Sciatica.

[00:01:28] Speaker 01:
And in fact, we can go through the parts of the decision.

[00:01:33] Speaker 01:
And so they're just rejecting the notion that that's what the board did, right?

[00:01:37] Speaker 03:
Well, I mean, that's certainly that's the government's position.

[00:01:40] Speaker 03:
However, it's clear from the record that, and the board's decision, they say the veterans did not identify Sciatica radiculopathy in the initial May 1992 claim.

[00:01:50] Speaker 03:
and cited only, and I quote, a pulled back muscle slash strain in the lower back.

[00:01:55] Speaker 03:
The governing law is clear on this that.

[00:01:58] Speaker 01:
Well, they also went on to say no evidence of sciatica or radiobiopathy was associated with the May 1992 claim.

[00:02:08] Speaker 01:
Right.

[00:02:08] Speaker 01:
So doesn't that suggest that the inquiry was not limited to this rigid legal rule that you had to have used the word sciatica, but that you have to put on some evidence

[00:02:19] Speaker 01:
that would ultimately lead one to suggest that this was the kind of problem at stake, right?

[00:02:25] Speaker 03:
Correct.

[00:02:26] Speaker 03:
And his service medical records, which were considered by the board in its initial decision rejecting his May 92 claim, contain indicia of sciatica, specifically citing pressure to his lower legs.

[00:02:39] Speaker 01:
Yeah, but that's your problem, right?

[00:02:41] Speaker 01:
Because your problem is you may be right or wrong on that, but we don't have jurisdiction to consider whether they were right.

[00:02:48] Speaker 01:
The only avenue

[00:02:49] Speaker 01:
Again, if I'm wrong, you tell me why.

[00:02:51] Speaker 01:
But the only avenue you have for our review is on the legal question.

[00:02:55] Speaker 01:
And your legal theory is a fair one.

[00:02:57] Speaker 01:
I just maybe think it's wrong, which is that they compel, they require that you specifically call out sciatica.

[00:03:06] Speaker 01:
If you're wrong about that, you may be right that there was some evidence and the board should have evaluated that evidence differently.

[00:03:14] Speaker 01:
You may be right about that.

[00:03:15] Speaker 01:
The problem for you there is that we don't have jurisdiction to review that.

[00:03:19] Speaker 01:
So where does that leave us?

[00:03:21] Speaker 03:
Well, so to address that specific point, if the board is reading that the 1991 records, which contain a clear edition of sciatica, don't actually prove he had sciatica, that reasons and basis was never articulated by the board at any stage or at any point in the last 24 years.

[00:03:39] Speaker 04:
Well, that's did you raise a reasons and basis argument to the Veterans Court?

[00:03:43] Speaker 03:
We did, Your Honor, and we raised it before this court.

[00:03:45] Speaker 04:
And did they reject it?

[00:03:47] Speaker 03:
They did, your honor.

[00:03:48] Speaker 04:
However, isn't that an application of law and effect that we don't review?

[00:03:51] Speaker 04:
I mean, the Veterans Court gets to decide whether the board's reasons and basis, which is mostly factual for its decision in this aspect, is sufficient or not.

[00:04:03] Speaker 04:
If the Veterans Court found that the board supplied sufficient reasons and basis and the evidence supports that, then you're done at the Veterans Court, aren't you?

[00:04:11] Speaker 03:
Well, the record doesn't actually support any

[00:04:16] Speaker 04:
This is your problem, though.

[00:04:18] Speaker 04:
If you keep talking about what the record supports, you're talking about evidence, which inherently means you're talking about a factual question or an application of law to fact.

[00:04:29] Speaker 04:
This particular thing that you think is a legal error, what legal principle do you think that the Veterans Court violated in affirming the board's decision?

[00:04:39] Speaker 03:
specifically that it affirmed the board's requirement that his 1992 claim would have specifically identified sciatica as, specifically identified sciatica instead of what it did, which was identify... What legal rule do you think that's in conflict with?

[00:04:56] Speaker 03:
The, I mean, the governing law on this, the, it would be, uh, D'Alessio, Vincenzecchi... Can you just tell me the legal rule?

[00:05:04] Speaker 03:
Sure.

[00:05:04] Speaker 03:
The legal rule that should have been applied is that

[00:05:07] Speaker 03:
the by identifying just generally a body part is sufficient to, uh, state a claim that encompasses all, all possible.

[00:05:17] Speaker 04:
Are you talking about the obligation to reclaim sympathetically?

[00:05:22] Speaker 04:
How is that ever something we're going to be able to review?

[00:05:25] Speaker 04:
The board didn't say it didn't have our obligation to reclaim sympathetically.

[00:05:29] Speaker 04:
As I read the veterans court, it agrees that the board had the obligation.

[00:05:35] Speaker 04:
It just found

[00:05:36] Speaker 04:
applying that obligation to the facts of this case that was met.

[00:05:41] Speaker 04:
I understand you disagree with that.

[00:05:43] Speaker 04:
We could disagree with that too.

[00:05:44] Speaker 04:
But application of a duty to read something sympathetically to the particular facts, isn't that inherently an application of law to fact?

[00:05:54] Speaker 03:
So again, we're just asking the court to remand to apply the correct standard because there was no finding specifically.

[00:06:00] Speaker 04:
Where is there any evidence that the veterans court rejected

[00:06:05] Speaker 04:
the obligation to read a claim sympathetically or applied a different standard.

[00:06:10] Speaker 03:
In the Veterans Court in affirming the board's decision, they simply quote the same language that he didn't identify sciatica specifically as opposed to.

[00:06:19] Speaker 04:
But the Veterans Court recognized that the board had an obligation to read the claim sympathetically, did it not?

[00:06:26] Speaker 04:
Yes.

[00:06:26] Speaker 04:
It didn't say, no, we don't have that.

[00:06:28] Speaker 04:
So the Veterans Court was applying the proper legal standard that

[00:06:36] Speaker 04:
They didn't apply it the way you liked it because you think that there's conclusive evidence that any reasonable person would have come out differently, but that's still application of law to fact, isn't it?

[00:06:48] Speaker 03:
That would be application of law to fact, but there's never the first time that sciatica was ever officially decided or was ever officially there was ever officially a ruling regarding sciatica at any point in this case was in 2006 and the

[00:07:06] Speaker 01:
And your client did get retroactive relief back to 1994.

[00:07:09] Speaker 01:
The only retroactivity you're seeking here is two years where there was a claim that was filed that was never appealed, right?

[00:07:18] Speaker 01:
So that's a pretty high stack to climb, is it not?

[00:07:22] Speaker 03:
So it's not that it was never appealed, Your Honor.

[00:07:26] Speaker 03:
When he filed his, we'll call it a renewed claim in 1994, the VA- No, I'm talking about the 92 claim.

[00:07:35] Speaker 01:
I mean, you're seeking just two years' worth of retroactivity from 92 to 94.

[00:07:40] Speaker 01:
And they decided this 2005 claim, and they gave you a client retroactive relief back to 1994.

[00:07:47] Speaker 01:
So you're only seeking the relief that would have come from the 92 claim, and you never appealed the 92 claim.

[00:07:54] Speaker 01:
Am I right or wrong about that?

[00:07:56] Speaker 03:
So first, the 1992 claim.

[00:07:58] Speaker 03:
didn't specifically address sciatica.

[00:08:00] Speaker 03:
In fact, the board found that there was not even an implicit denial for sciatica encompassed in that 1992 claim.

[00:08:07] Speaker 04:
However... Can I just get an answer to that question?

[00:08:11] Speaker 04:
Was the 99-2 claim ever appealed or did it become final?

[00:08:18] Speaker 03:
In 1994, the board found that his request for a renewed rating regarding his 1992 claim, the VA found that

[00:08:28] Speaker 03:
the medical records.

[00:08:29] Speaker 04:
It didn't go to the board did it?

[00:08:31] Speaker 04:
Excuse me?

[00:08:32] Speaker 04:
Did it go to the board in 94?

[00:08:34] Speaker 04:
Or did he just submit new and material evidence within the one year time frame that was then allowed to give him service connection for the back disability which they determined

[00:08:47] Speaker 04:
inexplicably, I can't figure out the timing on this, that it went back to 92.

[00:08:51] Speaker 03:
Right.

[00:08:51] Speaker 03:
So the procedural history between 1992 and 94 is a little confusing.

[00:08:55] Speaker 03:
I'll grant you that.

[00:08:56] Speaker 01:
They never filed the NNOD on the 92 claim.

[00:08:59] Speaker 01:
And the board says, and you're right, you point to the fact, well, they did give him relief on 92 for one of the problems.

[00:09:05] Speaker 01:
And the board, I think, correctly says, well, we messed up.

[00:09:09] Speaker 01:
I mean, they're not trying to undo that.

[00:09:11] Speaker 01:
But there was a mess up here that allowed them to go back to 92 on one of the issues.

[00:09:16] Speaker 03:
not not exactly heard the first of all the board has never acknowledged that a mistake was ever made the only time mistake was ever was ever raised by the government at all was in the secretary's briefing to the veterans court and which is a post hoc rationalization for what is admittedly a confusing record however the only conclusion that's supported by the actual record is that when

[00:09:36] Speaker 03:
is that the VA considered his 1993 medical records, and this is an affirmative finding in the record, to have been new material evidence that was submitted during the period for appeal of his 1992 claim that held the record open.

[00:09:48] Speaker 03:
And that was why, in 1994, they were able to grant him the 1992 effective date for his lower back.

[00:09:54] Speaker 04:
But that still doesn't explain the error.

[00:09:58] Speaker 04:
I mean, do those 93 documents?

[00:10:01] Speaker 04:
This is what I find confusing about the data.

[00:10:03] Speaker 04:
I don't really think it matters to your argument.

[00:10:05] Speaker 04:
Those 93 records, do they show evidence of the back injury dating all the way back or do they establish the back injury as of 93?

[00:10:17] Speaker 04:
What did the boards or the RO say on that point?

[00:10:20] Speaker 04:
Or did they just give them retroactively back to 92 because that was the date of the claim despite the statute that says you get the date of the claim or the date entitlement rose, whichever is later?

[00:10:32] Speaker 03:
The latter, Your Honor.

[00:10:34] Speaker 03:
They never made an explicit finding as to whether 3.156 would apply to his 1993 medical records.

[00:10:41] Speaker 03:
However, they granted him 1992 as a date.

[00:10:44] Speaker 04:
So nobody ever even made a determination that he actually had that condition in 92.

[00:10:49] Speaker 04:
I think that's probably why the Secretary thinks that there was an error, but they're not going to take that away.

[00:10:56] Speaker 03:
Right.

[00:10:57] Speaker 03:
But again, the

[00:11:00] Speaker 03:
The record only supports a conclusion that the 1994 VA decision explicitly cites those 1993 medical records and his service medical records in granting him the 1992 date for his back injury and makes an affirmative finding.

[00:11:15] Speaker 03:
And this is appendix.

[00:11:16] Speaker 03:
Sorry.

[00:11:17] Speaker 04:
Before we eat up all of your time, I'm not quite sure I understand it, but it seems like you don't agree with the government's remand.

[00:11:29] Speaker 04:
Assuming we disagree with all of your arguments, would you still object to the remand for the government's purpose?

[00:11:37] Speaker 03:
So the government's remand to consider the Turner issue won't advance the issues that are before the court today.

[00:11:44] Speaker 04:
First of all, as I said, the veterans... It might get you back to an earlier date than you have now, right?

[00:11:50] Speaker 04:
You have 94 now.

[00:11:51] Speaker 04:
It might get you back to at least 93.

[00:11:56] Speaker 01:
Well, I mean, I have the same confusion about what's going on with this Turner thing.

[00:12:02] Speaker 01:
Maybe when the government offered a remand, they didn't realize that you had reasons to reject it, which you articulate in gray.

[00:12:09] Speaker 01:
But I understand.

[00:12:11] Speaker 01:
The reason I don't understand why we would do a remand is you're not alleging.

[00:12:15] Speaker 01:
The remand would be for the purposes of applying the constructive test of Turner.

[00:12:20] Speaker 01:
And if you're not alleging that, yes, constructively the adjudicators did have notice

[00:12:26] Speaker 01:
of this 93 medical thing, then what's the point of applying Turner?

[00:12:32] Speaker 01:
Even if we agree with Turner, and we've never affirmed Turner in any event, your argument would be we should reverse Turner, right?

[00:12:38] Speaker 03:
If the court reached that issue, yes, but you don't need to reach that question of Turner to decide the case that's before.

[00:12:44] Speaker 04:
Wait, so let me clarify that.

[00:12:47] Speaker 04:
You're not making any allegation of constructive notice?

[00:12:50] Speaker 04:
No.

[00:12:51] Speaker 04:
So if you lose on your arguments, then

[00:12:54] Speaker 04:
We don't need to remand.

[00:12:56] Speaker 04:
Correct.

[00:12:56] Speaker 04:
OK.

[00:12:57] Speaker 01:
Great.

[00:13:00] Speaker 01:
You're into your rebuttal, so we've eaten up all of your time.

[00:13:03] Speaker 01:
If you have a few more comments to make, we'll reserve your time for rebuttal.

[00:13:07] Speaker 03:
No, I'll just reserve my time, Your Honor.

[00:13:09] Speaker 01:
Thank you.

[00:13:20] Speaker 04:
Good morning, Your Honor.

[00:13:21] Speaker 04:
May it please the Court?

[00:13:22] Speaker 04:
Can I ask you about this Turner thing?

[00:13:24] Speaker 04:
I mean, if he's not making an allegation of constructive notice, why would we waste our time, particularly on a case that is just a Veterans Court case that we haven't decided is correct or not?

[00:13:34] Speaker 05:
Understood, Your Honor.

[00:13:35] Speaker 05:
We interpreted the appellant to still be making that argument.

[00:13:38] Speaker 05:
They made it in their initial brief.

[00:13:41] Speaker 05:
They backed away from it a bit in the reply brief to sort of avoid this argument that we made about the necessity for a remand.

[00:13:48] Speaker 05:
If they're going to continue to not argue that, I suppose that, you know, well, I guess the answer to that would be that the board and the VA Veterans Court.

[00:13:58] Speaker 04:
Can I ask you this?

[00:13:59] Speaker 04:
Does the government think Turner is correct?

[00:14:02] Speaker 04:
I know you didn't, I don't think you appealed it, but that's a complicated process.

[00:14:07] Speaker 04:
It may be that you're just waiting for it to come up in an appeal by a veteran to argue that it should be overturned.

[00:14:14] Speaker 05:
Certainly, Your Honor.

[00:14:15] Speaker 05:
And I think it would be premature for us to opine as to whether

[00:14:18] Speaker 05:
it was correctly decided or not.

[00:14:19] Speaker 01:
So if they're not making an allegation of constructive whatever then why on earth would we I mean this case has been bumping around for you know since 1992 in one way shape or form I guess unless you can give us a reason why a remand is necessary here to adjudicate the case.

[00:14:41] Speaker 05:
Well given the veterans apparent opposition to the remand which has been clear but mostly because they view it as

[00:14:48] Speaker 05:
detrimental to their ability to have this court rule in their favor on other issues.

[00:14:53] Speaker 05:
Certainly, if the court were not to do that and then would find that the veteran would prefer not to have that adjudicated, that would come as some surprise to the government, I would say.

[00:15:02] Speaker 05:
Because as Judge you've mentioned.

[00:15:04] Speaker 04:
Well, I think he just said it.

[00:15:05] Speaker 04:
I agree, Your Honor.

[00:15:07] Speaker 04:
I mean, if he wants to change his mind between his opening statement and his rebuttal, I guess we'll listen to it.

[00:15:14] Speaker 04:
But I think we can take him at his word.

[00:15:17] Speaker 04:
Can you explain?

[00:15:18] Speaker 04:
I find the timing on this a little confusing, too.

[00:15:20] Speaker 04:
And I kept reading this and trying to figure out where that 92 date came from for the back condition.

[00:15:27] Speaker 04:
Can you explain what happened here?

[00:15:28] Speaker 05:
It does appear to be an error for all intents and purposes.

[00:15:32] Speaker 05:
There's nothing to indicate.

[00:15:33] Speaker 04:
So he filed a claim in 92.

[00:15:36] Speaker 04:
That's correct.

[00:15:37] Speaker 04:
It was denied in 92 in August.

[00:15:40] Speaker 04:
He didn't file an NOD.

[00:15:41] Speaker 04:
That's correct.

[00:15:42] Speaker 04:
He submitted additional evidence in 1994.

[00:15:46] Speaker 04:
But so the way in 93, there's wait, he didn't submit it till 94.

[00:15:51] Speaker 04:
There's 93.

[00:15:53] Speaker 04:
Oh, this is what's confusing.

[00:15:55] Speaker 04:
So the 93 report was made, but wasn't submitted.

[00:16:00] Speaker 04:
So the evidence he submitted in 94 was not within the one year period.

[00:16:04] Speaker 05:
That's correct, your honor.

[00:16:05] Speaker 05:
And so that's why we had asked for the remand because the one gap in the record from a factual standpoint is

[00:16:10] Speaker 05:
these records were created during the one-year appeal period at VA facilities.

[00:16:14] Speaker 04:
So when he submitted that evidence in 94, then if 3.156 had been applied properly or applied at all, it wouldn't have been within the one-year time period.

[00:16:26] Speaker 04:
Correct.

[00:16:26] Speaker 04:
So the earliest date could have been 94, or the date entitlement rose, whichever was later.

[00:16:34] Speaker 04:
That's correct.

[00:16:35] Speaker 04:
And so even assuming 93 established

[00:16:38] Speaker 04:
earlier entitlement, he's stuck with 94.

[00:16:40] Speaker 05:
94, that's correct, which is the date he already has for that.

[00:16:43] Speaker 05:
So the only way the date would change on a remand is if the court and the board were to find that there was constructive notice during that one-year appeal period.

[00:16:51] Speaker 05:
And so the records were created during the appeal period at VA facilities.

[00:16:55] Speaker 05:
There's no indication that there was any factual finding made as to whether they were constructively received.

[00:16:59] Speaker 05:
There's no determination one way or the other, although the government would acknowledge

[00:17:04] Speaker 05:
From the record I've seen, there's nothing to indicate that there was constructive receipt.

[00:17:08] Speaker 05:
We don't know if there could be some further evidence that would suggest that, but nothing that I see.

[00:17:12] Speaker 04:
Well, never mind.

[00:17:13] Speaker 04:
I'm not going to ask that.

[00:17:17] Speaker 04:
But just to clarify, he has 92 for the back condition and 94 for the sciatica.

[00:17:23] Speaker 04:
But what he really should have is 94 for both of them.

[00:17:26] Speaker 05:
That's correct, Your Honor.

[00:17:27] Speaker 05:
And so the briefing from the veteran suggests that they should both be the same.

[00:17:31] Speaker 05:
And logically, we agree.

[00:17:34] Speaker 05:
that what shouldn't happen is just because there was an error on one that we should compound that error with the other to make the two match.

[00:17:40] Speaker 05:
They should match, but they should match at 94.

[00:17:42] Speaker 04:
And VA case law... Because he didn't file... Even if the original RO decision in 92 was wrong and didn't read the claim sympathetically to include sciatica, that decision became final

[00:17:56] Speaker 04:
the new and material evidence wasn't submitted until after the time period, which couldn't do anything to the finality of that original decision.

[00:18:06] Speaker 05:
Exactly.

[00:18:07] Speaker 05:
Unless there was some receipt prior to the closing of that appeal period, which is the only factual gap that we have in the record.

[00:18:16] Speaker 01:
Subject, any further questions?

[00:18:19] Speaker 01:
not beat a dead horse, but go back to the Turner question.

[00:18:22] Speaker 01:
Is there any doubt that the government embraces the Turner standard?

[00:18:26] Speaker 01:
Because if there is, then I think it's doubly odd that the government would have us spend another few years of everybody's life going back, applying the Turner standard, and then it would presumably challenge that when they got up on appeal if the veteran were to prevail under that standard.

[00:18:46] Speaker 05:
I'm not in a position to speak as to whether there would be intention to challenge that.

[00:18:50] Speaker 05:
I will say that the doctrine of constructive receipt, which originated in the VA context in this Bell versus Derwinsky case in 92, has progressively been applied by the Veterans Court to additional areas throughout that system.

[00:19:03] Speaker 04:
And so I don't think it's... Can you give us an example of what's constructive receipt?

[00:19:06] Speaker 04:
Because this is a little baffling to me, because I think the law was just because you have a medical

[00:19:13] Speaker 04:
exam performed by a VA doctor in some hospital who puts a report in her file that that isn't sufficient notice to the benefit side of the house to start a claim.

[00:19:26] Speaker 04:
What kinds of things would be constructive notice as opposed to actual notice?

[00:19:31] Speaker 05:
What the court found in Turner is essentially, they made the acknowledgement, as you said, that VBA adjudicators can't be charged with knowing every treatment that's going on in any VA facility around the world.

[00:19:42] Speaker 05:
However, if they actually know that there's a treatment going on, even if the veteran hasn't submitted that to the adjudicators,

[00:19:48] Speaker 05:
they constructively know that that record should be associated with the case.

[00:19:52] Speaker 05:
And so that's where the Turner Court drew the line.

[00:19:54] Speaker 01:
And under what circumstances would they know?

[00:19:55] Speaker 01:
Because it came up in their case?

[00:19:57] Speaker 01:
Because the veteran mentioned, well, next week I have an appointment and I'm going to the doctor.

[00:20:03] Speaker 05:
Well, they also, the court framed it in the context of the duty to assist, which the VA has.

[00:20:08] Speaker 05:
So when they're collecting the case records, they have access to an electronic system, which may alert them that there are some records out there that aren't part of the case.

[00:20:17] Speaker 04:
So in there, I guess, but to me, that sounds like actual notice.

[00:20:22] Speaker 05:
It would be actual notice of the existence of the records.

[00:20:25] Speaker 05:
And so that's kind of the rub there where they said, you don't have to know of the contents of the records.

[00:20:29] Speaker 05:
You only have to know they exist.

[00:20:30] Speaker 05:
And if you know they exist, you've got to get them to see if they support them.

[00:20:34] Speaker 01:
So is this duty extended to the people on the exam side, not on the benefit side, to then when they do some medical evaluation to ascertain if the veteran has some

[00:20:46] Speaker 01:
pending adjudicatory claim and notify them?

[00:20:51] Speaker 05:
No, there's no indication, Your Honor, that that burden was put on the part of the medical care professionals whose mission is to treat the veteran.

[00:21:00] Speaker 05:
And so they are not charged with that duty.

[00:21:02] Speaker 05:
It imposes a bit of an additional duty on the VBA adjudicators to go out and look, consummate with their duty to assist, and see are there records out there

[00:21:14] Speaker 05:
Again, the Turner court said there's no relevant standard based on this court's precedence.

[00:21:18] Speaker 05:
And so it doesn't really have to determine whether these could be relevant records.

[00:21:21] Speaker 05:
It only determines, hey, there are some additional records out there.

[00:21:25] Speaker 05:
Before we make our determination, we've got to get those in house and determine if they could have an impact here.

[00:21:31] Speaker 05:
And so that's essentially the standard that Turner put on the VA.

[00:21:36] Speaker 05:
Now, as you say, this is a recent decision that the VA has not had a chance to see how it impacts cases and to make any determination as to

[00:21:44] Speaker 05:
what their position would be going forward in a case of its application.

[00:21:49] Speaker 05:
I wouldn't want to speak to that today.

[00:21:51] Speaker 00:
What's your view as to the impact of Turner in this particular case?

[00:21:55] Speaker 05:
So under Turner, the impact in this case would be if there were a determination made that these records which were created during the appeal period, we acknowledge, at VA facilities, if there was that knowledge.

[00:22:07] Speaker 05:
The issue, as I've mentioned, is

[00:22:10] Speaker 05:
there's nothing that I see in the record that would allow the board to say, well, yes, they were or were not constructively received.

[00:22:16] Speaker 05:
So there's no factual finding either way, and this court certainly shouldn't make it in the first instance.

[00:22:21] Speaker 05:
I acknowledge that there's not a lot to go on, but you never know what could be presented.

[00:22:25] Speaker 05:
Maybe there would be an interview with someone who worked on the case or something.

[00:22:30] Speaker 05:
But the impact on the case could be the result being what the veteran has asked for in terms of a 1992 effective date if it were determined.

[00:22:39] Speaker 05:
that those records were associated with the case in the one-year appeal period, and then certainly secondarily.

[00:22:44] Speaker 00:
If that's the case, if it would have a beneficial impact on the veteran's case, why would we not remand for there to be this factual finding in the first instance at the court below?

[00:22:54] Speaker 05:
That's been our position in this case, Your Honor.

[00:22:56] Speaker 05:
I suppose the counterargument would be if the veteran does not want the remand, then

[00:23:01] Speaker 01:
Well, it may not want it, because as you suggest, there's a factual predicate that's necessary to even making an argument that Turner would apply.

[00:23:08] Speaker 01:
And maybe they're being straight up honest and ethical by acknowledging that, no, that's not been their theory all along.

[00:23:17] Speaker 01:
There's no argument to be made applying the standard with which they disagree.

[00:23:21] Speaker 05:
Yeah, that may be, Your Honor.

[00:23:22] Speaker 05:
And it certainly was argued initially in the brief here

[00:23:28] Speaker 05:
It seems both in the reply brief and then in the argument today that the veteran has taken a different position.

[00:23:36] Speaker 05:
That's essentially our position on the remand.

[00:23:39] Speaker 05:
As the court has discussed previously, the other arguments that Mr. Gallagher advances before this court are really factual questions or application of a lot of facts.

[00:23:48] Speaker 01:
But you don't disagree that the law does not allow for the board or the CABC to have

[00:23:55] Speaker 01:
Because you didn't use the word sciatica, you're not entitled to this claim.

[00:23:59] Speaker 01:
Certainly, Your Honor.

[00:24:00] Speaker 01:
That would be a legal error.

[00:24:02] Speaker 05:
Absolutely, it would be a legal error.

[00:24:03] Speaker 05:
But we, as you mentioned in our brief, we advanced, and certainly we repeat today, that we do not read either of the board's decision, which specifically referenced some evidence to the contrary on sciatica, as well as the Veterans Court decision.

[00:24:17] Speaker 05:
While they both mentioned the fact that sciatica was not listed on the claim form, they went on to say there's no evidence in the record associated

[00:24:24] Speaker 01:
So they're asking for this appeal is limited to two years, because they've already gotten backdated to 1994.

[00:24:32] Speaker 02:
Correct, Your Honor.

[00:24:33] Speaker 01:
Do you know what percent, was it a 10% increase in the rating because of the sciatica?

[00:24:39] Speaker 05:
Yes, Your Honor.

[00:24:39] Speaker 05:
So yeah, it's not a lot of money that we're talking about.

[00:24:43] Speaker 05:
It's not a lot of difference in the rating time.

[00:24:46] Speaker 05:
But certainly the veteran's entitled to pursue it.

[00:24:48] Speaker 05:
As we've said, here in this court, the jurisdictional limitations of the court prevent

[00:24:53] Speaker 05:
most of the arguments that Mr. Gallagher has advanced.

[00:24:56] Speaker 05:
And then in terms of the Turner issue, there is that gap in the record, but the appellant apparently does not want to advance that argument any further.

[00:25:18] Speaker 03:
So first, I'd just like to be clear that

[00:25:21] Speaker 03:
There was no adjudication regarding sciatica at any time until 2006.

[00:25:27] Speaker 01:
And the board... What does that mean, there was no adjudication?

[00:25:33] Speaker 01:
I mean, I'm a little unclear what that means.

[00:25:37] Speaker 03:
Sure.

[00:25:37] Speaker 03:
The first time that Mr. Gallagher received any rating decision from the board or the VA regarding sciatica was 2006.

[00:25:46] Speaker 04:
Which goes back to 1994.

[00:25:50] Speaker 03:
Correct.

[00:25:51] Speaker 04:
Which was the date you made your new immaterial evidence claim.

[00:25:55] Speaker 03:
So that's the effective date, but I'm talking about the first time that the veteran ever received it.

[00:26:01] Speaker 04:
This is what baffles me about this case.

[00:26:03] Speaker 04:
I don't understand, even if you're correct, how you can get back to 1992 because you didn't file an NOD and you didn't file a

[00:26:14] Speaker 04:
new and material evidence claim within one year as required by 3.156.

[00:26:19] Speaker 04:
And you're not arguing Q. Excuse me?

[00:26:24] Speaker 04:
You're not arguing Q. Cleo, no mistake.

[00:26:27] Speaker 03:
Sorry.

[00:26:27] Speaker 03:
Oh, I'm sorry.

[00:26:27] Speaker 03:
No.

[00:26:31] Speaker 03:
The board, and this is Appendix 843, Your Honor, explicitly stated, it considered the 1994 rating decision.

[00:26:39] Speaker 03:
It explicitly considers those 1993 medical records and states,

[00:26:43] Speaker 03:
New material evidence has been submitted to warrant service connection for his lower back.

[00:26:47] Speaker 03:
That was the basis for the board granting him 1992 for his back.

[00:26:50] Speaker 03:
But that's error.

[00:26:52] Speaker 03:
There's no indication that that was error anywhere in the record.

[00:26:56] Speaker 04:
It's a plain reading of 3.156.

[00:26:57] Speaker 04:
In order for the original claim date to be still considered after a final decision, it has to be submitted within a year.

[00:27:06] Speaker 04:
And indisputably, it wasn't submitted within a year.

[00:27:11] Speaker 04:
It was submitted in 94, right?

[00:27:13] Speaker 03:
Correct.

[00:27:14] Speaker 03:
But if that's the case, that finding, that ruling or that explanation has never been provided by the VA or the board at any stage.

[00:27:22] Speaker 03:
And that in and of itself is a reason and basis error.

[00:27:25] Speaker 04:
Well, we don't have jurisdiction over that.

[00:27:28] Speaker 04:
I mean, it's clear that under the basic rules, you get a decision from the regional office.

[00:27:37] Speaker 04:
If you don't submit an NOD, it becomes final up to a year after

[00:27:42] Speaker 04:
you can submit new and material evidence associated with that claim, and it will render that original decision non-final.

[00:27:49] Speaker 04:
But if you don't do it within a year after, that decision is final.

[00:27:53] Speaker 04:
And the new and material evidence claim you submit is a claim that dates from the date of the new and material evidence claim.

[00:27:59] Speaker 04:
So the earliest you can possibly get on any of this is 94.

[00:28:03] Speaker 04:
The fact that the VA went back to 92 on the other one because it misapplied 3.156 or something else doesn't help you here.

[00:28:12] Speaker 03:
That wouldn't help us if we were, I'm sorry, Your Honor.

[00:28:16] Speaker 04:
I just want to know what legal basis you think there is to give you a 92 date when you didn't appeal the 92 decision and it became final and you submitted the new material evidence claim more than a year later.

[00:28:31] Speaker 03:
The legal basis, Your Honor, is specifically that the 1992 denial is not a denial for sciatica specifically.

[00:28:38] Speaker 03:
That's the board's finding, not just our reading of it.

[00:28:40] Speaker 03:
There was never a decision regarding sciatica specifically until 2006.

[00:28:45] Speaker 03:
And Mr. Gallagher did timely file a notice of an NOD regarding that denial.

[00:28:52] Speaker 04:
I don't, well, what's the legal basis for saying that there's still, are you saying there's a pending unadjudicated claim for 92?

[00:29:00] Speaker 03:
Yes, Your Honor.

[00:29:01] Speaker 03:
Where did you argue that?

[00:29:09] Speaker 03:
Well, it's not unadjudicated.

[00:29:10] Speaker 03:
It's the claim that's pending before the court right now.

[00:29:13] Speaker 04:
The claim that's pending before the court right now is your 1994 claim for new immaterial evidence.

[00:29:20] Speaker 04:
The 1992 case became final.

[00:29:23] Speaker 04:
You didn't file a notice of NOD.

[00:29:26] Speaker 03:
The 1992 case did not become final specifically with regard to sciatica because no finding about sciatica was ever made until 2006.

[00:29:32] Speaker 04:
So this sounds like a new theory to me that it's a pending, unadjudicated claim that you've never raised.

[00:29:40] Speaker 03:
It's consistent with the positions we've taken in our briefing, I believe, Your Honor.

[00:29:44] Speaker 04:
Well, did you ever cite the line of cases that says, that talks about pending unadjudicated claims?

[00:29:51] Speaker 03:
I don't, I have to check the briefing.

[00:29:53] Speaker 03:
I don't believe so, though.

[00:29:54] Speaker 04:
I don't believe you did either.

[00:29:56] Speaker 04:
So, 92 became final, but you're saying because they didn't address something, it didn't become final?

[00:30:04] Speaker 04:
What support do you have for the notion that

[00:30:07] Speaker 04:
just because they didn't address something you think they should have addressed, that it didn't become final, even though you didn't file anything within a year.

[00:30:17] Speaker 03:
So at Appendix 24, this is the board decision that's on appeal here.

[00:30:26] Speaker 03:
The board finds that there was no implicit denial for service connection for sciatica and radiculopathy prior to the June 2007 grant of service connection.

[00:30:34] Speaker 03:
So the

[00:30:36] Speaker 03:
The 1992 denial for his lower back was not a denial for sciatica.

[00:30:42] Speaker 03:
So even if that, even if that 1992 claim did become final in 1993, it did not foreclose his ability to pursue sciatica because there was no decision on sciatica until 2007.

[00:30:53] Speaker 03:
Yeah.

[00:30:54] Speaker 04:
And you filed your claim for sciatica in 1994 based upon the new material evidence.

[00:31:01] Speaker 04:
And you got back to 94.

[00:31:05] Speaker 04:
Either you raised sciatica in 92.

[00:31:07] Speaker 03:
Which we argue that we did.

[00:31:09] Speaker 04:
And it was adjudicated and it became final.

[00:31:12] Speaker 04:
Or you raised it in 94, and you got the 94 date.

[00:31:16] Speaker 03:
No, the fact that the board didn't acknowledge that, and I realize I'm over my time now, I believe, Your Honor.

[00:31:24] Speaker 03:
So I'll just, sure, I'll just.

[00:31:29] Speaker 04:
No, you don't have to finish.

[00:31:31] Speaker 04:
You can drain out of the question.

[00:31:33] Speaker 00:
I just want to make sure that I understand your position correctly with respect to Turner.

[00:31:38] Speaker 00:
Because I'm intrigued by the fact that you would oppose a remand, given that the potential for the review on the applicability at 3.156 would help you.

[00:31:51] Speaker 00:
So exactly what is your position?

[00:31:52] Speaker 00:
Are you still opposed to remand?

[00:31:55] Speaker 03:
Yes, sir.

[00:31:56] Speaker 03:
Because the- All right.

[00:31:58] Speaker 00:
That's all I need.

[00:31:59] Speaker 03:
Thank you.

[00:32:00] Speaker 01:
Thank you.

[00:32:00] Speaker 01:
Thank you both sides in the cases.