[00:00:00] Speaker 02:
2016.

[00:00:38] Speaker 02:
Good morning.

[00:00:39] Speaker 02:
Good morning, Your Honor.

[00:00:40] Speaker 02:
Mr. Carpenter, you reserved five minutes of rebuttal time, correct?

[00:00:44] Speaker 03:
I did, Your Honor.

[00:00:45] Speaker 03:
May it please the Court, Kenneth Carpenter, appearing on behalf of Mrs. Regina Perkel.

[00:00:50] Speaker 03:
On June 12th of 2013, this Court held that in the implementing of the Board of Veterans' Appeals decision of 2006, finding a clear and unmistakable error in a 1953

[00:01:03] Speaker 03:
VA decision, reducing Mr. Perkel's 100 percent rating, that the VA was required as a matter of law to consider the effects of that cue finding on the legal and factual basis of two subsequent decisions in 1956 and 1966.

[00:01:20] Speaker 00:
Do I understand right from your brief that you think that what should have happened, what should now happen, is that in order to give a

[00:01:32] Speaker 00:
a full and accurate, neither too big nor too small remedy for the 1953 clear error that you're not entitled to 100% automatically from 53 to 88.

[00:01:46] Speaker 00:
but that the VA should inquire what position Mr. Ferkel would have been in with respect to disability ratings during that time, which might change over time.

[00:01:56] Speaker 00:
I thought your brief acknowledged that.

[00:01:58] Speaker 03:
Not changed over time, but changed at the specific time of the 1956 and 1966 decisions to reduce.

[00:02:08] Speaker 03:
As this court explained in its decision,

[00:02:10] Speaker 03:
in this case.

[00:02:11] Speaker 00:
I'm sorry, so that the VA could decide on a remand that had the RO come in 1956 to starting with 100% rating, that there would nevertheless, outside the framework of what was actually in front of the RO in 1956, starting with 100%

[00:02:38] Speaker 00:
would nevertheless have reduced it to 70 then to 50 or 50?

[00:02:42] Speaker 03:
Seventy to 50 and then 50 to 30.

[00:02:45] Speaker 00:
And that's an open remedial question under a make whole but not make better principle.

[00:02:50] Speaker 03:
That's correct, Your Honor.

[00:02:52] Speaker 03:
And it's part of this Court's presidential decision in this case in 2013 that said that this was part of the implementing action and that Mr. Perkel

[00:03:04] Speaker 03:
had the right to appeal the VA's implementation of that request for revision, which they terminated at 56.

[00:03:13] Speaker 00:
And even the government concedes that there was jurisdiction to implement.

[00:03:17] Speaker 00:
No question about that.

[00:03:18] Speaker 00:
They then say, but nevertheless, 56 and 66, 67 are binding.

[00:03:23] Speaker 00:
Can I ask you one legal question?

[00:03:25] Speaker 00:
I probably should know the answer to this by now.

[00:03:30] Speaker 00:
Hypothetically, suppose the VA has a legitimate 70% rating, and then pursuant to some medical exam, the RO says, we're going to reduce it to 50.

[00:03:41] Speaker 00:
Does the reduction take place, take effect?

[00:03:44] Speaker 00:
Do the payments get lowered immediately, even while you're appealing to the board?

[00:03:51] Speaker 03:
Now, are you asking in the first instance, or are you asking in the remedial instance?

[00:03:55] Speaker 00:
No, this is just hypothetical in the ordinary course

[00:04:00] Speaker 03:
In the ordinary course of a reduction of a total rating?

[00:04:04] Speaker 00:
No, not a total rating.

[00:04:06] Speaker 00:
First, I'm trying to get straight.

[00:04:08] Speaker 00:
My point will eventually be the answer to this question seems to me to have something to do with the applicability of the regulation.

[00:04:16] Speaker 00:
OK?

[00:04:16] Speaker 00:
Or the non-applicability.

[00:04:17] Speaker 00:
So I'm trying to get an answer to the question.

[00:04:20] Speaker 00:
Forget about the 100% situation.

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70 to 50.

[00:04:23] Speaker 00:
does 50 take effect?

[00:04:25] Speaker 00:
Do the payments get reduced immediately, even during the many years you're in front of the board?

[00:04:32] Speaker 03:
Yes, they do.

[00:04:33] Speaker 03:
But with a 60-day down the road.

[00:04:38] Speaker 00:
Which is what they did in 56 and 66.

[00:04:40] Speaker 00:
Correct.

[00:04:41] Speaker 00:
Is there a regulation?

[00:04:42] Speaker 00:
I've had a hell of a time finding out where that is.

[00:04:47] Speaker 03:
I believe the regulation is at 3.105

[00:04:52] Speaker 00:
It's not a... Okay, there was some language there that seemed close, but I wasn't quite sure.

[00:04:58] Speaker 03:
Yes, in which they give notice of the proposed, then they make the decision.

[00:05:02] Speaker 03:
When they make the decision, that decision goes into effect 60 days after the date.

[00:05:10] Speaker ?:
Okay, good.

[00:05:10] Speaker 03:
Sorry.

[00:05:10] Speaker 03:
And I'm sorry, I've now completely lost track of where I was.

[00:05:13] Speaker 00:
You were saying that the implementation remedy needed to look back at what might have happened in 56 and 66.

[00:05:19] Speaker 03:
Yes, and that's the critical piece here.

[00:05:22] Speaker 03:
Because what this court found in the original decision in this case was that, and this was an issue of first impression for this court, what happens when there are subsequent decisions that are affected by a finding of clear and unmistakable error?

[00:05:39] Speaker 03:
Not a finding of clear and unmistakable error, if you will, in decisions two and three, but that decisions two and three were dependent upon the clear and unmistakable error made in decision one.

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And in this case, it means that the rate is elevated back to the 100% rating.

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It was not 70, and it was not 50 in 56 and 66.

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It was 100%.

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And that 100% rating has very special procedural protections that are afforded to veterans.

[00:06:13] Speaker 01:
Is it fair to say, as the government says,

[00:06:16] Speaker 01:
maybe you'll disagree, that what you're proposing is basically a extra statutory collateral attack on a rating decision.

[00:06:29] Speaker 01:
There's two statutory ways to do as I understand it, clear and unmistakable error, and then new and material evidence.

[00:06:35] Speaker 01:
Those are provided for in the statute.

[00:06:36] Speaker 01:
That's correct.

[00:06:38] Speaker 01:
An otherwise final denied claim for benefits.

[00:06:43] Speaker 01:
And now here, through this avenue,

[00:06:46] Speaker 01:
that you're proposing, which is an implementation of our earlier decision from a few years ago, would essentially be a third non-statutory collateral attack on those 56 and 66 decisions.

[00:07:01] Speaker 03:
And I understand that that's their position and that that was the reasoning of the board and of the veterans' appeals.

[00:07:06] Speaker 01:
Right.

[00:07:08] Speaker 01:
But is that premise correct, that this is a non-statutory way to revisit

[00:07:14] Speaker 01:
a denial of a benefits claim.

[00:07:19] Speaker 03:
It is correct to say that it is non-statutory.

[00:07:22] Speaker 03:
It is also correct to say that it was judicially mandated.

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And the judicially mandated decision

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was based upon an interpretation of the statute and what the statute required in order to make the veteran whole as a result of the clear and unmistakable error found in 53.

[00:07:45] Speaker 00:
But then I'm not sure I would say, if I were you, that it's non-statutory.

[00:07:49] Speaker 00:
It is an implication of the statutory provision for CUE on the 1953 decision.

[00:07:55] Speaker 03:
on the 1953 decision.

[00:07:56] Speaker 03:
But I thought Judge Shin's question went to the 1956 and 1966 decisions.

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

[00:08:02] Speaker 00:
Implementing the statute as to the 1953 CUE as consequences for what would happen later in the 56 and 66 decisions, which didn't even answer the relevant question, namely, can we go below 100, aren't preclusive of what would have happened in a make-hole remedy on the 53 CUE.

[00:08:23] Speaker 03:
That's correct.

[00:08:23] Speaker 03:
And I believe that that was the mistake made by the board and the mistake then repeated by the Veterans Court because they saw this through the narrow lens of a right to attack for the 56 and 66 decisions for Q, which is not what has happened.

[00:08:42] Speaker 03:
What has happened is that Mr. Perkel was successful in his attack of the 53 decision, which then had consequential impact on the 56 and 66 decision.

[00:08:53] Speaker 03:
And this court made clear that Mr. Perkel was entitled to that remedy, and he never got that remedy.

[00:08:59] Speaker 01:
The remedy being to apply regulation 3.343?

[00:09:04] Speaker 03:
Actually, it's 3.170 for the 56 and 3.343 for the 66.

[00:09:07] Speaker 03:
All right.

[00:09:09] Speaker 01:
Can I just say 3.3 for purposes of appeal so I don't have to say both?

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

[00:09:15] Speaker 03:
OK.

[00:09:16] Speaker 03:
Not that you needed my permission.

[00:09:17] Speaker 01:
Right.

[00:09:18] Speaker 01:
So then it comes down to, in your view, that the VA has to determine whether there's some kind of material improvement of the veteran.

[00:09:28] Speaker 03:
Under both statutory provisions?

[00:09:30] Speaker 01:
To be able to lower the rating from the 100% rate.

[00:09:33] Speaker 01:
Is that right?

[00:09:34] Speaker 03:
Well, actually, I don't believe it's as simple or as I think you've gone to a later consideration under the regulation under both versions of the regulation.

[00:09:47] Speaker 03:
What is required is a VA examination prior to that action.

[00:09:52] Speaker 03:
And in both cases, in 56 and in 66, there was no preceding VA examination as required.

[00:10:01] Speaker 03:
That nullified any legal ability to take a reduction.

[00:10:08] Speaker 01:
OK.

[00:10:09] Speaker 01:
What happened then, if you recall?

[00:10:11] Speaker 01:
Because I don't.

[00:10:12] Speaker 01:
What happened in 56 and 66 that triggered the VA to lower the rating?

[00:10:17] Speaker 03:
They mistakenly adjudicated it as though it were not a reduction case, but a case of entitlement to the rating.

[00:10:25] Speaker 03:
And the entitlement to the rating has been found by the Veterans Court to be a completely different process than the process of reduction.

[00:10:34] Speaker 00:
Was there a medical exam in either 56 or 66?

[00:10:37] Speaker 03:
No, Your Honor.

[00:10:38] Speaker 01:
So that's why I'm confused.

[00:10:40] Speaker 01:
What was the trigger then for the VA to say, okay, you're not better.

[00:10:45] Speaker 01:
You used to be 70, you're now 50.

[00:10:47] Speaker 01:
What was the trigger?

[00:10:48] Speaker 01:
Why did they do that?

[00:10:49] Speaker 03:
They looked at his VA medical treatment records, and based upon those medical treatment records, lined up whether the symptomatology as reported in those records

[00:11:00] Speaker 03:
scored, as it were, for a 50% rating or a 70% rating, and they said it scored for a 50% rating.

[00:11:08] Speaker 03:
That is not the proper analysis.

[00:11:11] Speaker 03:
The procedural protection under 3.170 and 3.343 requires a VA examination to make a finding of material improvement under the ordinary circumstances of life.

[00:11:24] Speaker 03:
And that simply did not happen.

[00:11:27] Speaker 00:
Just to get back to where

[00:11:29] Speaker 00:
Maybe we started.

[00:11:33] Speaker 00:
I took it that you acknowledged that were we to send this back, the VA still has the option of asking the question, what would have happened to his ratings had he come into 1956 with 100% and considering such evidence as exists,

[00:11:57] Speaker 00:
including the VA treatment records, might still conclude it would have been reduced as it was.

[00:12:07] Speaker 03:
If you understood that from my response, then I misspoke or was unclear.

[00:12:12] Speaker 03:
The regulation itself requires the presence of a VA examination that makes such a finding.

[00:12:19] Speaker 03:
So if no such VA examination is in the record and it is not,

[00:12:24] Speaker 03:
then that reduction would be unlawful as a matter of law.

[00:12:29] Speaker 03:
They simply could not go further.

[00:12:31] Speaker 03:
They couldn't look to, as they did in 56 and 66, to the VA treatment records alone.

[00:12:37] Speaker 03:
That's what is the protection that is provided by these two regulations.

[00:12:42] Speaker 01:
Before you run out of time, can we talk about Reisenstein?

[00:12:46] Speaker 01:
Factually speaking, that case looks very similar to this case, and so I'm wondering

[00:12:52] Speaker 01:
Why shouldn't the stories of the two veterans, Reisenstein and Perkel, rise and fall together?

[00:13:00] Speaker 03:
Well, the Reisenstein case was predicated upon a stage grading based upon a grant over a significant period of time.

[00:13:11] Speaker 03:
That is not the factual circumstance here.

[00:13:14] Speaker 03:
There was no long-term retrospective determination

[00:13:20] Speaker 03:
over a period of decades as to what the rating should be.

[00:13:25] Speaker 03:
And what the court held in Reisenstein was is that using the stage rating theory, that they were able to look sequentially through that decades-long period and determine at one point he was 70, at one point he was at 100, and at a later point he was 70.

[00:13:43] Speaker 01:
So what if the board here had said,

[00:13:46] Speaker 01:
Okay, in 53 you were 100, in 56 you were 50, and in 66 you were 30.

[00:13:52] Speaker 03:
Then you would have ignored the mandate of the regulation.

[00:13:55] Speaker 01:
I know, but I'm trying to fit it in within the facts of Reisenstein.

[00:13:59] Speaker 01:
Would that make your case just like Reisenstein if the board, when it issued the Q decision on 53, had said, okay, you get 100 from 53 to 56, you get 70, I mean,

[00:14:13] Speaker 01:
You get 50 from 56 to 66, and from 66 to 88, you get 30.

[00:14:18] Speaker 01:
Would that be?

[00:14:19] Speaker 03:
That would be wholly improper.

[00:14:21] Speaker 03:
That would be unlawful and illegal.

[00:14:23] Speaker 03:
It is simply not possible under the statutory or the regulatory framework.

[00:14:29] Speaker 01:
OK, why could the board do that for Reisenstein but not do it for Perkel?

[00:14:35] Speaker 03:
because of this concept that was adopted by, accepted by this court, by the representations of the VA of their long-standing policy of stage ratings to rate in a extended period at different sequential periods.

[00:14:50] Speaker 03:
That's not what happened here.

[00:14:52] Speaker 01:
What happened here was... No, I understand it's not what happened here.

[00:14:54] Speaker 01:
My question is a hypothetical.

[00:14:56] Speaker 01:
My hypothetical question is when the board decision issued the Q decision, it created basically a staged rating in a retrospective sense, 53 to 56, 56 to 66, 66 to 88.

[00:15:10] Speaker 01:
And you're telling me that's illegal.

[00:15:12] Speaker 01:
OK.

[00:15:13] Speaker 01:
Tell me why that would be illegal.

[00:15:15] Speaker 03:
Because once a veteran is assigned a 100% rating and has that rating in place for five years or more, there are special protections

[00:15:26] Speaker 03:
that were created sui sponte by the secretary.

[00:15:28] Speaker 03:
These are not statutory mandates.

[00:15:30] Speaker 03:
These are secretary's regulations that mandate that you do not touch that 100% rating until certain predicates are met.

[00:15:40] Speaker 03:
That is not a prospective rating.

[00:15:42] Speaker 03:
That is a continuation of the protected rating of 100%.

[00:15:46] Speaker 02:
Is it enough that Roger Field is not a Q case, does not involve Q?

[00:15:51] Speaker 03:
I don't think it makes any difference, Your Honor.

[00:15:53] Speaker 03:
Okay.

[00:15:53] Speaker 03:
I don't think it makes any difference at all.

[00:15:55] Speaker 02:
Okay, thank you.

[00:16:03] Speaker 02:
Mr. Tudor?

[00:16:06] Speaker 04:
Like a mayor, please to the court.

[00:16:09] Speaker 04:
Respectfully request that the court confirm the decision of the Court of Appeals for Veterans Claims because the

[00:16:16] Speaker 04:
Board and later the Veterans Court properly complied with this court's remand order and considering whether 3.343 or its predecessor regulation in effect.

[00:16:25] Speaker 04:
And they concluded that it did not affect the later ratings based upon this court's reasoning in the Risenstein decision, which it found to be analogous to the situation of applying a Q rating to later rating stages and also the president.

[00:16:41] Speaker 00:
Since you start with the regulation, I guess here is the

[00:16:45] Speaker 00:
the issue that I'm focused on.

[00:16:49] Speaker 00:
It seems to me that the language of this regulation is readily susceptible to the Reisenstein staged rating interpretation because the language of this regulation is about an agency adoption of a rating with open-ended prospective effect unless the agency comes back later and changes it.

[00:17:14] Speaker 00:
And that's not what you're allowed, and you're not supposed to make that change in the 100% situation without complying with the regulation.

[00:17:22] Speaker 00:
The stage rating determination simply doesn't involve that.

[00:17:26] Speaker 00:
It's looking backwards and say, when were you disabled by how much, even on the initial claim?

[00:17:34] Speaker 00:
So the language of the regulation permitted the Reisenstein interpretation.

[00:17:39] Speaker 00:
I don't see how the language of this regulation permits this interpretation that there is supposed to be, that the regulation is in, I'm sorry, yeah, that the regulation is inapplicable when there is an announced, indefinite, open-ended perspective rating that is later going to be a rating of 100% that is later going to have to change.

[00:18:04] Speaker 04:
So taking the court's question, I'm understanding it.

[00:18:09] Speaker 00:
So the perspective of fact... The text allowed Reisenstein, it doesn't here.

[00:18:15] Speaker 04:
The policy considerations behind the VA's interpretation in Reisenstein and the language talked about... Policies don't reach beyond the text.

[00:18:24] Speaker 00:
This was an explanation for why that particular textually available interpretation made a kind of sense.

[00:18:33] Speaker 00:
Not anything more.

[00:18:35] Speaker 04:
The particular standard here was you can't reduce the 100% to a lower level absent a showing of material improvement.

[00:18:46] Speaker 04:
There are two reasons why there's compliance here.

[00:18:49] Speaker 04:
One is whether this applies in the context of a retroactive application.

[00:18:53] Speaker 04:
The VA concluded it does not.

[00:18:55] Speaker 04:
Second is whether there would be evidence in record support of shining material.

[00:19:00] Speaker 00:
Let me pick up on this.

[00:19:01] Speaker 00:
Suppose you had a

[00:19:04] Speaker 00:
a 100 percent rating and then along comes the VA and it reduces it to say 50 percent.

[00:19:16] Speaker 00:
Now I assume you agree with Mr. Carpenter that takes place immediately.

[00:19:21] Speaker 00:
The payments get cut in half 60 days after the RO decision.

[00:19:25] Speaker 04:
We don't have reason to disagree with that.

[00:19:27] Speaker 00:
Okay.

[00:19:28] Speaker 00:
And then you go to the board and it takes three years and you go to the Veterans Court and it takes another two years and you come here and finally you get a decision saying the board was wrong to make that reduction.

[00:19:41] Speaker 00:
Are you going to say that because there were no hundred percent payments reduced that the remedy from that is only from that point forward and the five or six years of fifty percent payments

[00:19:53] Speaker 00:
don't get remedied, because after all, this regulation doesn't apply.

[00:19:56] Speaker 00:
It hasn't been getting the money.

[00:19:58] Speaker 04:
Well, in this context, the Q... Forget about Q. I didn't mention Q. All right.

[00:20:05] Speaker 04:
So you give retrospective effect to the 100% rating.

[00:20:10] Speaker 04:
And the question is whether... Why?

[00:20:12] Speaker 00:
According to you, this regulation applies only if they've actually been getting the money.

[00:20:19] Speaker 00:
Plain old non-queue situation.

[00:20:21] Speaker 00:
For five years in appeal, they hadn't been getting the money.

[00:20:25] Speaker 04:
All I was talking about was whether they were getting the money.

[00:20:28] Speaker 04:
So did they get the money in a lump sum in the back retroactive?

[00:20:32] Speaker 04:
Yes, they got the 100%.

[00:20:33] Speaker 04:
Similar to the queue here, they got the 100% for the full period from 53 to 57.

[00:20:39] Speaker 00:
I think we're not communicating.

[00:20:42] Speaker 00:
You have this theory that if the person has not been getting the money, the regulation doesn't apply during the period when the person has not been getting the money.

[00:20:52] Speaker 00:
That seems to me to require you to say, outside the Q context, in a five-year appeal of a RO reduction that turns out to be wrong, the remedy on that appeal doesn't provide for

[00:21:08] Speaker 00:
truing up that five years' worth of half-under payments because the regulation doesn't apply.

[00:21:14] Speaker 00:
You haven't been getting the money.

[00:21:17] Speaker 04:
My understanding is that regulation is only applying if you're reducing 100 percent rating to something low.

[00:21:22] Speaker 04:
That was my hypothetical.

[00:21:23] Speaker 04:
If the board rules that this person has 100 percent rating as of this date, then at a certain point, if they want to reduce it at a later point, then there would be the material improvement standard beyond that.

[00:21:35] Speaker 04:
I don't have a precise explanation under regulation what would happen outside the Q context on that since we're here to argue about the Q context.

[00:21:44] Speaker 00:
To the extent you understand what I'm getting at and to the extent I'm clear, it strikes me, I have a very hard time understanding how this taking of this retroactive you weren't getting the money principle out of the linguistic context

[00:21:59] Speaker 00:
and saying, as long as you weren't getting the money, we can ignore the regulation for the period that you weren't getting the money.

[00:22:08] Speaker 00:
I don't see how that makes any sense.

[00:22:11] Speaker 00:
Because it genuinely would require, as far as I can tell, that in a direct appeal of the reduction from 100 to 50, that relief, when you finally get out of the Veterans Court or out of the board, years later, would not

[00:22:29] Speaker 00:
pay you for the missing years of the incorrect reduction.

[00:22:37] Speaker 04:
My understanding as I'm standing here is that if you've gotten a hundred percent rating at some point, at that point, if you're going to have a later examination to lower that to a lower level, that's the point when 3.343 would kick in.

[00:22:49] Speaker 04:
Now the effect of

[00:22:51] Speaker 04:
how you get to that 100 percent rating, whether it's on an appeal from a lower rating, then the board makes it a higher rating.

[00:22:57] Speaker 04:
That's a different question.

[00:22:58] Speaker 04:
I'm not, I don't think I have all of the answers to what the court's asking about that, but what we're talking about here is if you're starting with 100 percent rating, when you have, and you hear the cue says, okay, there's 100 percent rating from the 53 to 57 period.

[00:23:11] Speaker 04:
What is, you know, what is the effect of that when you're looking at later rating periods?

[00:23:16] Speaker 04:
Now, the vehicle,

[00:23:18] Speaker 04:
that they could, the veteran could have followed to give effect to that would be to make a huge challenge to the latter time period, to the 1956 period.

[00:23:27] Speaker 00:
There are separate questions here about the kind of statutory preclusive effect of what happened in 56 and 66 or 67, and the straightforward regulation applicability question.

[00:23:41] Speaker 00:
I do not see how this regulation does not apply in 56.

[00:23:46] Speaker 04:
So I guess the answer to that would be if back we had a time machine to go back to 1956.

[00:23:53] Speaker 00:
That's what make-hole remedies are.

[00:23:57] Speaker 00:
They are speculative, you know, but for hypothetical reconstructions of what would have happened.

[00:24:06] Speaker 04:
So the best evidence we have of that is on page 76 of the record, which was the statement of the case from the regional office in February of 2008, where the regional office concluded that the regional office did comply with the predecessor regulation 3.170 in 1956, and that the record did support a finding of material improvement.

[00:24:27] Speaker 00:
But the board didn't address it.

[00:24:28] Speaker 04:
The board didn't address it because the veteran on appeal said, I'm not challenging the 1956 decision on the basis of Q. I'm making this procedural decision to only try to implement the 1953 decision.

[00:24:41] Speaker 00:
Why is he not entitled to a board decision about what would have happened in 56 if, coming into 56, he had 100%?

[00:24:53] Speaker 00:
Carpenter wants to take that further than I'm done, than it's clear to me he's entitled to.

[00:25:03] Speaker 00:
That is, my but-for question would allow a Board determination that the best evidence of what would have happened in 56 is found in what did happen in 56, even though that was legally incorrect.

[00:25:20] Speaker 00:
You can't fix the regulation problem now.

[00:25:23] Speaker 04:
The Board and the Veterans Court included on the strength of Risenstein and its interpretation of the jurisdiction, but getting on that to Risenstein that the regulation didn't apply to its examination of 56.

[00:25:37] Speaker 04:
If it were to consider it and say, okay, Risenstein doesn't apply here, we're going to look at what happened in 56.

[00:25:44] Speaker 04:
First, we have the evidence from page 76 of the record that the regional office concluded that, yes, it did it.

[00:25:49] Speaker 04:
And then looking at the definitions of the

[00:25:52] Speaker 04:
the standards for disability, which were at page 71 of the record, that the examination from 56 met the definitions of what would be a 50 percent disability rate.

[00:26:05] Speaker 04:
Now, the board did not make those factual determinations on remand from this Court's decision.

[00:26:11] Speaker 00:
Why isn't he entitled to that?

[00:26:13] Speaker 04:
Because we believe the Board's interpretation that Ryzenstein applies in this context is correct.

[00:26:20] Speaker 00:
Take as an assumption, which I know you're contesting, that the regulation does apply and that it had to govern any reduction that would have occurred in 56.

[00:26:34] Speaker 00:
Perhaps the regulation was not complied with, but if the remedy question now is what would have happened,

[00:26:42] Speaker 00:
then why isn't the question, what does the evidence tell us would have happened if that regulation were being followed?

[00:26:53] Speaker 00:
Under the Hortz hypothetical.

[00:26:54] Speaker 00:
You said the RO said something about that, but the board did not.

[00:26:57] Speaker 04:
All right.

[00:26:58] Speaker 04:
The board did not.

[00:26:59] Speaker 04:
The board also didn't express disagreement at any point with the RO's conclusion.

[00:27:03] Speaker 04:
But if the question is, did the board address the same question that the RO took up in 76, the answer is no, except that the board did take up that question of whether there was Q in the 67 board decision in August of 2002 and conclude that there was no Q. We believe that the proper procedural mechanism for the board to take up is not

[00:27:27] Speaker 04:
a remand on the going-forward effect of the 53 decision without reference to later rating decisions, but whether there was actual cue in those later rating decisions, which among other things would require an examination of the very kind of medical evidence that the court's questioned and asked whether the board was actively considering in this context.

[00:27:49] Speaker 04:
Therefore, there had already been the RO, had already turned down the cue for both rating periods, and the board

[00:27:57] Speaker 04:
turn it down in 67.

[00:27:59] Speaker 04:
So under the Courts Hilliard decision, then, you know, that decision can no longer have Q claim.

[00:28:05] Speaker 04:
This would be a way to get around, basically, the Courts Hilliard decision, which would be one problem with that approach.

[00:28:11] Speaker 04:
But putting that aside, the proper mechanism would be to make a Q claim to the latter two time periods.

[00:28:18] Speaker 04:
That would be a way to consider the medical evidence and whether 3.170 or latter 3.343 were complied with.

[00:28:27] Speaker 02:
Why doesn't the Q rating in 53 affect the subsequent two ratings?

[00:28:33] Speaker 04:
There were separate examinations, and those were found at page 31 and 32, and then 33 and 34 of the record.

[00:28:41] Speaker 04:
So you have a separate examination for each time period.

[00:28:45] Speaker 04:
Veterans Council made reference to there's a VA regulation on stabilized ratings.

[00:28:50] Speaker 04:
Once a rating's been in a place for five years, then there's heightened standards to lower that.

[00:28:54] Speaker 04:
That wouldn't be applicable here because the rating from 53 to 57 was in effect for less than five years.

[00:29:01] Speaker 00:
And?

[00:29:02] Speaker 04:
And?

[00:29:02] Speaker 00:
56 to 66, that's more than five.

[00:29:05] Speaker 04:
56 to 66 was a rating of, an independent rating of 50%.

[00:29:12] Speaker 04:
So that,

[00:29:13] Speaker 04:
was the, so it's a late rating.

[00:29:15] Speaker 04:
So that's, that's a different application than during the period from 66 onward.

[00:29:22] Speaker 04:
I mean, the man was not only employed, he was employed by the VA.

[00:29:25] Speaker 04:
So he was, I mean, he was employed.

[00:29:28] Speaker 04:
There was examination of, you know, his level of disability.

[00:29:32] Speaker 04:
You know, there's no claim that his examinations themselves were not compliant.

[00:29:36] Speaker 04:
It's simply a matter of whether they didn't use the words material improvement, because they had no occasion to think about that at that time, because that was in front of them.

[00:29:44] Speaker 00:
Right.

[00:29:45] Speaker 00:
I guess what I want to say is what you just said sounds like it might be relevant to the remedial inquiry, but the board didn't conduct it.

[00:29:55] Speaker 04:
They did not conduct that factual inquiry because they concluded that they were asking, they were answering the question the Court asked.

[00:30:01] Speaker 04:
You know, do these regulations apply here?

[00:30:03] Speaker 04:
Their answer was no, they don't apply here because of rising sea.

[00:30:08] Speaker 04:
If that's wrong, then the proper remedy would be for the Board to say, okay, make this explicit factual analysis, even though we think that they've already

[00:30:19] Speaker 04:
gotten the Q analysis that they, the veteran already got the Q analysis back in 2005.

[00:30:24] Speaker 04:
And for the 67 board decision in 2002, we don't think there's a way around that.

[00:30:30] Speaker 04:
But that would be a question to be encountered only after there's a separate Q claim.

[00:30:34] Speaker 04:
We think that's the proper vehicle.

[00:30:35] Speaker 04:
If the court thinks that the proper vehicle is to look at the 53 decision without requiring separate Q claims, then the board would be doing a factual analysis of whether

[00:30:46] Speaker 04:
the medical records here, pages 31 through 34 of the record, and comply with these standards that were in effect at the time, 3.170 and 3.343, notwithstanding the Reisenstein decision.

[00:30:59] Speaker 02:
So are you saying that the court's decision on purple one was wrong?

[00:31:04] Speaker 04:
No, we're saying that it was complied with.

[00:31:06] Speaker 04:
It was simply the court asked, hey, did these regulations apply?

[00:31:09] Speaker 04:
The board gave an answer, no, they don't apply.

[00:31:11] Speaker 02:
Did the VA ignore them?

[00:31:14] Speaker 04:
No, they were applying it.

[00:31:17] Speaker 04:
So they said the court has asked us a question.

[00:31:19] Speaker 04:
Does the 3.343 regulation change the legal and factual basis?

[00:31:26] Speaker 02:
They said no.

[00:31:26] Speaker 04:
They said the court's order was to consider the effects.

[00:31:36] Speaker 04:
So they considered the effects and concluded that there was none in light of Reisenstein.

[00:31:40] Speaker 04:
And the purple one decision did not address Reisenstein.

[00:31:43] Speaker 04:
If the court concludes that that analysis was incorrect, the proper remedy would be to remand for the board to look at that specific factual question.

[00:31:51] Speaker 04:
But we think there's evidence in the record to support the conclusion that there was no cue and that 3.343 was complied with in the 56 rating decision.

[00:32:01] Speaker 01:
What is the VA's understanding of what it means to be material improvement in 3.343?

[00:32:05] Speaker 01:
Is it even a 10% improvement?

[00:32:10] Speaker 01:
Say you're getting benefits at 20%, but then

[00:32:13] Speaker 01:
There's an assessment that the person is improved to a point where it's really only a 10% disability.

[00:32:19] Speaker 01:
Is that deemed a material improvement?

[00:32:21] Speaker 04:
We looked, and we didn't find a definition of material improvement.

[00:32:24] Speaker 04:
But here, the 56 rating decision was a 50% rating and complied with the standards for mental illness disability that were put forth at page 71, among other things, whether the person has remained employed.

[00:32:39] Speaker 04:
There is a question of flatness of affect, how debilitating if there's depression, how much it would be.

[00:32:45] Speaker 04:
Here the 31, page 31 said, well, he's depressed, but he makes himself carry on, and he has some flatness of affect.

[00:32:52] Speaker 04:
These complied with the standards put forth for a 50% rating.

[00:32:56] Speaker 04:
We don't have a definition of what material improvement would be, but a 50% level compared to 100% level would represent a material improvement and was the regional office's assessment at page 76 of the record.

[00:33:10] Speaker 02:
Okay, thank you.

[00:33:15] Speaker 02:
Mr. Carpenter, we took you over your time, so we'll give you back three minutes.

[00:33:19] Speaker 03:
Well, Your Honor, even though there's a lot I would like to offer, I do not believe that it will be of any particular benefit to the panel.

[00:33:26] Speaker 03:
If there are any further questions from the panel.

[00:33:28] Speaker 01:
You told me earlier that there was no medical examination, either 56 or 66.

[00:33:32] Speaker 03:
That's correct.

[00:33:33] Speaker 03:
And I stand by that.

[00:33:34] Speaker 01:
So what's going on in 831 to 34?

[00:33:37] Speaker 03:
I have no idea what the government's talking about.

[00:33:39] Speaker 01:
It's not in the Joint Appendix, Your Honor.

[00:33:45] Speaker 01:
831 to 34?

[00:33:46] Speaker 00:
831 to 31.

[00:33:53] Speaker 03:
31 to 34 is a rating decision, Your Honor.

[00:33:56] Speaker 03:
that says VA examination.

[00:34:00] Speaker 03:
There is no VA examination in the record.

[00:34:06] Speaker 03:
Now, I understand that that's what's printed on that sheet.

[00:34:09] Speaker 03:
That's a rating decision.

[00:34:10] Speaker 01:
Right.

[00:34:11] Speaker 01:
I'm just trying to understand.

[00:34:13] Speaker 01:
It says date of last examination, 9-29-56, at 8-31, for example.

[00:34:21] Speaker 03:
At 8-31?

[00:34:26] Speaker 00:
The little box in the upper right-hand corner.

[00:34:36] Speaker 03:
That's correct, Your Honor.

[00:34:37] Speaker 01:
Okay, so it indicates that there was an examination on September 29, 1956.

[00:34:42] Speaker 01:
Is that how I should read it?

[00:34:46] Speaker 01:
I'm just trying to understand.

[00:34:48] Speaker 03:
That there was an examination.

[00:34:50] Speaker 03:
It makes no

[00:34:52] Speaker 03:
and it's not included in this record, any determination that upon that VA examination, that examiner found material improvement.

[00:35:00] Speaker 01:
No, I understand.

[00:35:01] Speaker 01:
I'm just trying to understand if there was a VA examination or not.

[00:35:05] Speaker 01:
And, of course, this seems to be indicia that there was one in 1956.

[00:35:09] Speaker 03:
And I'm sorry.

[00:35:10] Speaker 01:
As in our Perkel I opinion in 2013, where at 1380 we said, we summarized what happened in 56, saying there was a newly acquired VA medical examination in 56.

[00:35:21] Speaker 01:
and there was a newly acquired VA medical examination 66.

[00:35:24] Speaker 01:
So I'm just trying to get to the bottom of this.

[00:35:26] Speaker 03:
And I apologize, Your Honor, I may have not been clear.

[00:35:30] Speaker 03:
There is not a VA examination of record that addressed the procedural criteria of the regulations that require... Okay, but that's different than saying that there was never a VA examination of 66 or 66.

[00:35:43] Speaker 03:
And I apologize, Your Honor, I misspoke.

[00:35:45] Speaker 03:
I was not correct in that statement.

[00:35:48] Speaker 03:
Unless there's further questions or clarifications, thank you very much.