[00:00:07] Speaker 03:
We have four argued cases this morning, one a veteran's case and three patent cases, one of which is from the PTAB and two from the district court.

[00:00:20] Speaker 03:
Our first case is George Acost, Sr.

[00:00:28] Speaker 03:
versus the Secretary of Veterans Affairs, 2018-16-70, Mr. Attick.

[00:00:41] Speaker 01:
May it please the Court.

[00:00:43] Speaker 01:
Mr. Lacoste acknowledges that he must demonstrate intent to apply for benefits.

[00:00:48] Speaker 01:
That does not mean, however, that he must demonstrate specific intent to claim each medical condition within that application.

[00:00:56] Speaker 01:
That is the legal standard that the Veterans Court used, and it is the wrong legal standard.

[00:01:01] Speaker 01:
We know it's the wrong legal standard because this Court, dating all the way back to Hodge and Schroeder, through Roberson, Moody, Semraj,

[00:01:10] Speaker 02:
Can I understand what you mean by the specific intent?

[00:01:14] Speaker 02:
I guess there's a range.

[00:01:18] Speaker 02:
Do you think it's sufficient that he just say, I intend benefits?

[00:01:22] Speaker 02:
Or do you think that he needs to have any degree of specificity identifying the part of the body, the nature of the injury?

[00:01:30] Speaker 02:
I mean, maybe he could say, I intend to seek benefits for everything demonstrated in my medical records, see attached.

[00:01:37] Speaker 02:
There are a lot of different ways I could see this working out, but I guess I don't understand your line between intent and specific intent with respect to the particular injury or disease that he's going to seek benefits for.

[00:01:52] Speaker 01:
Yes, Your Honor.

[00:01:52] Speaker 01:
We believe that intent lives in one specific part of a claim, and that's the intent to show an application for general benefits.

[00:02:00] Speaker 01:
And I think that's memorialized very well in the Secretary's own regulation.

[00:02:04] Speaker 01:
3.155b, where it describes intent as seeking a general benefit and no need to claim any specific condition.

[00:02:11] Speaker 04:
The concept of specificity in which... And so which regular... Is that the post-2015 regulation, or... Yes, Your Honor.

[00:02:18] Speaker 04:
Is that what we're dealing with, or are we dealing with the pre-2015?

[00:02:21] Speaker 04:
We're dealing with the pre-2015, and I only cite... Right, but that language wasn't in there, right?

[00:02:26] Speaker 01:
That is correct, Your Honor.

[00:02:27] Speaker 01:
I believe it was not in the pre.

[00:02:29] Speaker 01:
I'm just using that as an example to show that even the Secretary acknowledges that the

[00:02:33] Speaker 01:
intent goes to the application for benefits and not to the... Right.

[00:02:37] Speaker 04:
I guess, I mean, I want to focus, I think, on this same thing, too.

[00:02:42] Speaker 04:
So 155, 3.155A says you must indicate and specify or identify the benefits sought.

[00:02:52] Speaker 04:
That's the language, right?

[00:02:53] Speaker 04:
And that might just mean disability or death compensation or pension or dependency.

[00:03:04] Speaker 04:
Nothing further.

[00:03:05] Speaker 04:
It might mean, by benefit, only the class of benefits sought, not anything at all about the basis within the disability category.

[00:03:18] Speaker 04:
And I guess in preparing for this argument, I've been trying to get a grip on whether that is the correct reading or not.

[00:03:27] Speaker 04:
It's clearly not been the reading in the Veterans Court for 25 years.

[00:03:31] Speaker 04:
I'm not sure we've ever actually addressed that.

[00:03:34] Speaker 01:
Your Honor, this court has not addressed that.

[00:03:36] Speaker 01:
This concept of intent to specify the specific medical condition drives back to Brannan in 1988 out of the Veterans Court, 1998 out of the Veterans Court.

[00:03:45] Speaker 01:
This court has cited to Brannan two times.

[00:03:49] Speaker 01:
And one of those times was in McPhee, where it referenced it in what I believe was dicta.

[00:03:53] Speaker 04:
But also in a recent- Well, as I read McPhee,

[00:03:56] Speaker 04:
It says the Veterans Court addressed 155A.

[00:04:00] Speaker 04:
It also addressed 157.

[00:04:02] Speaker 04:
We are not deciding the 155 because the veteran is not appealing that ruling here.

[00:04:07] Speaker 04:
All we're saying is that it was perfectly right for the Veterans Court to turn to 157.

[00:04:14] Speaker 04:
And 157 does actually have medical condition language in it, unlike 155.

[00:04:20] Speaker 01:
That is correct, Your Honor.

[00:04:21] Speaker 01:
And our reading of McPhee is the same as that, is that the court did not reach 155 in terms of the specific intent versus the scope of the claim once in application for benefits aside.

[00:04:32] Speaker 01:
And I think this court's standard, to return to your original question, Judge Moore, this court's standard that it elicited dating back to Hodge and Schroeder, Roberson, Moody, Semraj, puts the onus on the board to explain what's reasonably raised by the record.

[00:04:47] Speaker 04:
And I think that if we start talking about- This is pushing back a little bit in the other direction.

[00:04:56] Speaker 04:
None of them say, if you file an application and say, I want benefits, but don't point to anything, including not even pointing to a particular medical record, that it is enough if the RO finds in the medical record a reference

[00:05:17] Speaker 04:
to an underlying condition.

[00:05:20] Speaker 04:
We haven't gone that far.

[00:05:22] Speaker 01:
And I'm not asking the court to go that far.

[00:05:25] Speaker 01:
What we're asking is to require the board to examine what's reasonably raised by the record and not just limit it to what the veteran intends in terms of medical conditions.

[00:05:35] Speaker 01:
Because you can have a variety of scenarios.

[00:05:37] Speaker 01:
You can have a scenario that your honor just described

[00:05:39] Speaker 01:
You can have another scenario where a veteran just sends in medical records of PTSD without any indication to the regional office or to the board what he wants or she wants done with those.

[00:05:51] Speaker 01:
Is the veteran seeking a non-service-connected disability pension?

[00:05:55] Speaker 01:
Is the veteran seeking service-connected disability compensation?

[00:05:58] Speaker 01:
Are they seeking, is it private records that they're seeking reimbursement?

[00:06:01] Speaker 01:
I think that that's what ultimately when I read

[00:06:05] Speaker 01:
cases like Roberson and Semraj and Moody as it's saying to the board, consider all this, look at this, make a decision as to what is reasonably raised by the record.

[00:06:15] Speaker 01:
And in the example your honor cited, where all you have is just something sent in that doesn't specify a specific class of benefits, or in the example that I gave.

[00:06:25] Speaker 03:
But how was a mental condition reasonably raised by this record?

[00:06:30] Speaker 01:
By this particular record, your honor, we believe that it was raised

[00:06:34] Speaker 01:
in the service records which related the ulcer and the mental health condition.

[00:06:39] Speaker 01:
Now, we're not specifically coming to this court and asking this court to decide what the scope of that 1972 claim was.

[00:06:45] Speaker 01:
We're asking the court to decide the legal standard by which the board should have assessed that.

[00:06:50] Speaker 01:
And we're asking this court to tell the board that intent to acclaim medical conditions, specifically mental health, is not part

[00:07:00] Speaker 01:
the exclusive part of that reasonably raised assessment.

[00:07:03] Speaker 01:
Certainly the board could consider that as a component, but I don't think it can do that by ignoring the rest of the record that suggests that there may be a medical relationship.

[00:07:14] Speaker 04:
Can I ask a mundane procedural question?

[00:07:17] Speaker 04:
So back in 1972, Lacoste files his handwritten application.

[00:07:22] Speaker 04:
He doesn't himself submit medical records, right?

[00:07:25] Speaker 04:
Correct.

[00:07:25] Speaker 04:
And so the VA goes and gets, these are all Air Force medical treatment records.

[00:07:29] Speaker 04:
They're not VA treatment because, you know, he was just out of the military and all of his treatment was, was in service.

[00:07:36] Speaker 04:
Correct.

[00:07:36] Speaker 04:
And he would then have seen these medical records in, I mean, would he be getting copies or only the RO or not?

[00:07:45] Speaker 01:
I would say as a general rule that the veteran does not get those copies.

[00:07:49] Speaker 01:
In my practical experience, and I know the court can't rely on this, but in my practical experience that information is not shared and in fact the Veterans Court has recently decided that the duty to assist does not require the VA to produce documents related to the claim.

[00:08:03] Speaker 04:
Do we make anything of, I guess it's a fairly striking fact that he applies for benefits in I guess May of 72 and November of 72 he gets

[00:08:16] Speaker 04:
A decision, a decision that says, yeah, your ulcer is connected to service, but zero disability.

[00:08:22] Speaker 04:
And then he doesn't appeal.

[00:08:23] Speaker 04:
Do we make anything of the fact that at that point and for the next three and a half decades, he never says, goodness, I had this psychiatric-related condition?

[00:08:37] Speaker 04:
Isn't it somehow telling that he didn't seem to think so?

[00:08:44] Speaker 04:
anywhere near the time of the original application.

[00:08:48] Speaker 01:
Certainly, Your Honor, I would have preferred if Mr. Lacoste had appealed that.

[00:08:51] Speaker 01:
The fact that he didn't, though, I don't think says it could say a number of things.

[00:08:56] Speaker 01:
As you can see from the records, he had some significant mental health issues when he left service.

[00:09:01] Speaker 01:
He had been treated inpatient psychiatric treatment in service.

[00:09:05] Speaker 01:
He had been treated with Librium.

[00:09:07] Speaker 01:
He had been treated with Valium.

[00:09:08] Speaker 01:
It's not entirely clear what his state of mind was.

[00:09:12] Speaker 01:
at the time he filed his claim or at the time he received that decision, he may never have received it.

[00:09:18] Speaker 01:
He certainly may never have known what to do with it or he may have not been in a state of mind to be able to deal with it at that time.

[00:09:24] Speaker 03:
He ultimately did get service connection for a mood disorder, right?

[00:09:29] Speaker 01:
In 2010, it was service connected for the mood disorder.

[00:09:32] Speaker 01:
And that decision specifically related it back to those medical records in 1972, which is why we argue that that's the decision that adjudicated that 1972 claim.

[00:09:43] Speaker 03:
Well, that was the date that he applied for Parkinson's disease, right?

[00:09:47] Speaker 01:
He did apply for Parkinson's in 2010.

[00:09:49] Speaker 03:
And that's when they gave them the mood disorder service connection.

[00:09:55] Speaker 01:
Specifically, Your Honor, he applied in 2010 and they denied Parkinson's in 2011.

[00:10:00] Speaker 01:
He filed a notice of disagreement challenging the denial of Parkinson's, but also asserting that the regional office had failed to consider his mood disorder claim from 1972 and the component of his Parkinson's that was depression.

[00:10:14] Speaker 01:
He had two mental health conditions going on at this time.

[00:10:18] Speaker 01:
He had the one that the mood disorder that relates back to service, and he had the depression that was secondary to the Parkinson's.

[00:10:24] Speaker 01:
And so he had to appeal both of those because both of those were implicitly denied in the 2010

[00:10:30] Speaker 01:
ratings decision.

[00:10:32] Speaker 01:
And it was in 2013 that the agency came back and granted service connection for the mood disorder at 100% disabling based on those 1972 service medical records.

[00:10:44] Speaker 01:
He was later service connected for Parkinson's in 2015.

[00:10:48] Speaker 01:
and a medical opinion looked to see if there was any way to separate out the symptoms from the two medical conditions, and they found that they could not.

[00:10:54] Speaker 02:
The difficulty, it seems to me, is if you look at the claim filed in 72, which is on page 420 of the appendix, the question it asks is nature of sickness, disease, or injuries for which claim is made and date of each.

[00:11:09] Speaker 02:
And he lists one, two, three, four, five, six, seven, six or seven separate things.

[00:11:17] Speaker 02:
His left foot cyst, his ulcer.

[00:11:19] Speaker 02:
I'm not going to go through all of them.

[00:11:20] Speaker 02:
But none of them relate to anything psychiatric.

[00:11:24] Speaker 02:
None of them relate to a depression or a mood disorder or any sort of thing.

[00:11:28] Speaker 02:
So the form back then, the application for compensation or pension had this

[00:11:35] Speaker 02:
line which says you need to hear list any sickness or disease or injury for which you are seeking a claim.

[00:11:41] Speaker 02:
He could have said I am seeking a claim for all

[00:11:45] Speaker 02:
injuries or benefits listed in my VA medical records and maybe that would have been a better scenario for you because the medical records did in fact talk about a mood disorder, but he identified with specificity what he was seeking the claim for and it doesn't include any psychiatric disorders.

[00:12:04] Speaker 02:
So how does that evidence intend to claim benefits for psychiatric disorders?

[00:12:10] Speaker 01:
That's ultimately our concern is that it

[00:12:12] Speaker 01:
We don't think that Mr. Lacoste had to show intent to claim a mental health condition in 1972.

[00:12:18] Speaker 01:
He only had to seek an intent for the general class of benefits.

[00:12:20] Speaker 02:
But he didn't seek an intent for the general class of benefits.

[00:12:24] Speaker 02:
He sought benefits for his left foot cyst, for his ulcer.

[00:12:28] Speaker 02:
None of those are the general class of benefits, which include a psychiatric mood disorder.

[00:12:33] Speaker 02:
Those are very specific.

[00:12:35] Speaker 02:
In fact, I'm suggesting that his level of specificity may be what dooms him here.

[00:12:39] Speaker 02:
He was so specific, he told the VA, my left foot is the problem.

[00:12:44] Speaker 02:
My ulcer is the problem.

[00:12:46] Speaker 02:
And due to that, I don't see how I can now fault the VA for failing to have considered this a claim for mental health benefits, which is what you've asked me to do.

[00:12:57] Speaker 01:
The first thing I would say, two things to that, Your Honors.

[00:13:00] Speaker 01:
The first thing I would say is when I'm talking about a general class of benefits, what I'm talking about is disability compensation versus a non-service-connected pension.

[00:13:08] Speaker 01:
versus a request for reimbursement versus service connection of cause of death or IEU, the different classes of benefits that the VA monitors and compensates for.

[00:13:17] Speaker 01:
Secondly, we don't know exactly what Mr. Lacoste intended or knew at that time in terms of what his condition was.

[00:13:23] Speaker 01:
For example, he mentioned ulcer.

[00:13:26] Speaker 01:
And because throughout service, his ulcer was treated at the same time as his mental health condition,

[00:13:32] Speaker 01:
was treated with the same medications, Librium, Valium, was noted as a physio-psychological gut reaction, certainly when he, as a layman, is saying to the agency, service connect my ulcer, he might well have been thinking the ulcer and the mental health condition that caused it.

[00:13:50] Speaker 02:
Well, if that were true, that would be a question of fact that we don't have the authority to review.

[00:13:54] Speaker 02:
If the government read ulcer and understood that to only be his stomach condition as opposed to his stomach condition and his mental health,

[00:14:01] Speaker 02:
That would be a question of fact or an application of law to fact.

[00:14:04] Speaker 02:
That wouldn't be a question of how do I define claim under the statute or regulation.

[00:14:09] Speaker 02:
So even if you're correct, that would not be within the authority of this court to review.

[00:14:15] Speaker 01:
And we're not asking the court to make that review.

[00:14:17] Speaker 01:
What we're asking this court to look at is the way that the board

[00:14:20] Speaker 01:
what was the scope.

[00:14:22] Speaker 01:
It looked and it said intent.

[00:14:23] Speaker 03:
Council, you're well into your rebuttal time.

[00:14:26] Speaker 03:
Perhaps we should hear from the government now.

[00:14:30] Speaker 03:
We'll give you two minutes for rebuttal.

[00:14:40] Speaker 03:
Ms.

[00:14:41] Speaker 03:
Bae, is it?

[00:14:41] Speaker 00:
Yes, Ms.

[00:14:43] Speaker 00:
Bae.

[00:14:44] Speaker 00:
May it please the court?

[00:14:45] Speaker 00:
We ask that this court either dismiss Mr. Lacoste's appeal for lack of jurisdiction or affirm the determination of the Veterans Court.

[00:14:52] Speaker 00:
Starting with the jurisdictional issues, Mr. Lacoste attempts to overcome the jurisdictional bar by claiming that the Veterans Court and the board required a specific intent

[00:15:03] Speaker 00:
on the part of Mr. Lacoste to apply for a mental health benefit, but that is not the case.

[00:15:08] Speaker 00:
As we stated in our briefs, the board, in fact, mentioned multiple times throughout its decision, for example, at appendix's pages 90, 95, 96, that the identification need not be specific.

[00:15:23] Speaker 04:
Right, but his position today is forget about the word specific.

[00:15:28] Speaker 04:
You don't actually need an indication of conditions – condition particular intent.

[00:15:37] Speaker 04:
That's a legal question about what one of the regulations – I guess the only one that's relied on here, 155A, means.

[00:15:46] Speaker 00:
To go back a little bit, in his briefs, the argument that Mr. Lacoste raised was that they wrongly applied a specific intent standard to the extent that he argues that today they shouldn't have had to show any intent at all except to show a claim for it.

[00:16:02] Speaker 04:
Just assume with me, this is to me not actually at all helpful in getting at what is very troubling to me, which is figuring out

[00:16:13] Speaker 04:
What regulation is the governing regulation and what the regulation means?

[00:16:18] Speaker 04:
Can I ask you this question first?

[00:16:20] Speaker 04:
Put aside 155A.

[00:16:23] Speaker 04:
Was 159A in existence in 1972 in the form it is now?

[00:16:30] Speaker 04:
Because 159A is about the actual application, and that's what we're talking about.

[00:16:35] Speaker 04:
What did this application mean?

[00:16:39] Speaker 04:
Was 159 in existence

[00:16:42] Speaker 04:
with its language about what a substantially complete application means, which, unlike 155A, refers to the benefit claimed and any medical conditions on which it is based.

[00:16:55] Speaker 00:
Yes, Your Honor.

[00:16:55] Speaker 00:
And I do believe that was in effect in 1972, although I believe it's been amended a couple times since then.

[00:17:01] Speaker 04:
Well, the whole thing got changed in 2015.

[00:17:04] Speaker 00:
Relevant to this appeal.

[00:17:06] Speaker 00:
And the board, in fact, did spend more than two or three months.

[00:17:10] Speaker 04:
But the Veterans Court did not rely on that, and you're not relying on it.

[00:17:12] Speaker 00:
The Veterans Court did not speak about 3.159A.

[00:17:16] Speaker 00:
And the majority of our briefs, in responding to Mr. Lacoste's briefs, did not speak specifically or in depth about 3.159.

[00:17:25] Speaker 00:
At all?

[00:17:28] Speaker 00:
We may have cited it in passing.

[00:17:29] Speaker 04:
Well, here's my trouble, just so that you understand what I've been struggling with.

[00:17:35] Speaker 04:
I think that there's this threshold legal question about 155A all by itself.

[00:17:42] Speaker 04:
require anything at all about the basis for a request for disability compensation.

[00:17:52] Speaker 04:
It sure looks on its face like all it is saying is, just on its face, textually, tell us whether you want a pension under 3.3, compensation under 3.4, or dependency benefits under 3.5.

[00:18:10] Speaker 00:
Your Honor, read by the plain language, it does not speak about specific conditions or body parts.

[00:18:17] Speaker 00:
But as Your Honor said, 3.159 does mention the medical conditions.

[00:18:21] Speaker 04:
Well, now we're talking.

[00:18:23] Speaker 04:
If we were talking about 3.159, then I think it's undeniable.

[00:18:27] Speaker 04:
There's language in there about the benefits conditions.

[00:18:29] Speaker 04:
But I'm not sure what to do when the entire case is presented under 155A.

[00:18:36] Speaker 04:
And tell me if I'm wrong.

[00:18:39] Speaker 04:
Have we actually had a case in which we've said your claim was not specific enough and rejected it on the ground that 155A requires some kind of condition particularity?

[00:19:02] Speaker 04:
Remember from your brief, the only one that you rely on is McPhee, and McPhee did not reach the 155A issue.

[00:19:08] Speaker 04:
And then you turn to Veterans Court decisions, which, as your counterpart indicates, has, at least since Brannon in 1998, so held.

[00:19:18] Speaker 04:
But I'm not sure we ever had, and I haven't seen from you either a statutory or a regulatory analysis telling us why that's right.

[00:19:26] Speaker 00:
Your Honor, we did cite McPhee, and although McPhee didn't specifically apply to 3.155A, I think the holding in McPhee is still germane to this appeal.

[00:19:35] Speaker 04:
Moreover... I'm sorry, that's too fast.

[00:19:40] Speaker 04:
The only thing what McPhee actually ruled on was 157, and 157 actually has language in it about the specific disability.

[00:19:48] Speaker 04:
So what it says about that language doesn't imply

[00:19:52] Speaker 04:
what 155A, which has no such language in it, means.

[00:19:57] Speaker 00:
Yes, Your Honor.

[00:19:59] Speaker 00:
However, and I understand that this is a Veterans Court decision.

[00:20:02] Speaker 00:
The Veterans Court in Borkowski did talk about the language of identifying a body part or a symptom.

[00:20:08] Speaker 00:
And although this court has never specifically affirmed Borkowski, it has

[00:20:12] Speaker 00:
relied on the principles in Borkowski, sometimes in the cases of finding that there is no jurisdiction because these are factual inquiries, but I believe in the Pacheco case and in Veterans Justice Group, the principles that the Veterans Court relied upon in the Borkowski case were essentially affirmed by this court.

[00:20:30] Speaker 04:
Pacheco?

[00:20:31] Speaker 00:
Pacheco is not a presidential case.

[00:20:33] Speaker 04:
Oh, okay.

[00:20:34] Speaker 04:
Put that aside then.

[00:20:35] Speaker 04:
What's the other one?

[00:20:36] Speaker 00:
Veterans Justice Group.

[00:20:37] Speaker 04:
Is that the one in which we upheld the change in regulations?

[00:20:41] Speaker 00:
I believe so, although it does not, again, it's not specifically about 3.155A.

[00:20:46] Speaker 00:
It did affirm the principles that... Well, I guess I think I've probably already made clear, but let me just summarize.

[00:20:52] Speaker 04:
It is very strange to me that there is this regulatory language that you all have not addressed either by relating it to anything else in the regulations like 3.1 or 3.3 or 3.4 or 3.5 or anything in the statute.

[00:21:07] Speaker 04:
to say here's why this language means something other than tell us the type of benefit you want, namely pension versus compensation.

[00:21:20] Speaker 00:
to CFR 3.1, which discusses just the theory of a claim in general.

[00:21:25] Speaker 00:
And that claim is actually based in statutory authority.

[00:21:29] Speaker 00:
For example, 38 USC 5107 basically says that except as otherwise provided, a claimant has responsibility to present and support a claim for benefits.

[00:21:39] Speaker 00:
And then 3.1 essentially talks about what a claim application means.

[00:21:44] Speaker 00:
And in this case, it's just

[00:21:47] Speaker 00:
The plain fact, as the board found in the Veterans Court upheld, that Mr. Lacoste did not present a claim for a mental or mood disorder.

[00:21:58] Speaker 00:
As Your Honor Judge Moore mentioned, he presented a claim for five very specific physical conditions, none of which the board found encompassed a psychiatric condition.

[00:22:11] Speaker 02:
What if in that box he said, I am seeking a claim for benefits for all

[00:22:16] Speaker 02:
injuries and diseases reflected in my medical records?

[00:22:20] Speaker 00:
Your Honor, that to me is similar to the seller's decision, which I believe was decided by the Veterans Court recently and in which the government has docketed a notice of appeal.

[00:22:32] Speaker 00:
So that issue, I believe, is in front of this court and in sellers right now.

[00:22:36] Speaker 04:
However... And your brief is due in two weeks, right?

[00:22:39] Speaker 04:
I hope you have a better discussion about McPhee and

[00:22:43] Speaker 04:
primary sources in that brief.

[00:22:45] Speaker 00:
Your honor, I'm not personally assigned to the Sellers case.

[00:22:48] Speaker 04:
I meant you in a much more institutional sense.

[00:22:50] Speaker 00:
Speak of what exactly is happening in Sellers.

[00:22:53] Speaker 00:
However, we would disagree that even a general statement of intent to seek benefits for anything, everything that occurred in service would be enough for then just any mention in the medical record to bring the claim

[00:23:10] Speaker 00:
within the scope to bring those references in the medical records within the scope of the claim.

[00:23:15] Speaker 00:
But again, here, there is not even that.

[00:23:18] Speaker 00:
Here, there were five specific claims.

[00:23:21] Speaker 00:
Rosacea, gonorrhea, ulcer, footsis, some very specific conditions.

[00:23:26] Speaker 00:
And none of them encompass a psychiatric condition.

[00:23:29] Speaker 00:
And the board specifically found that.

[00:23:31] Speaker 00:
I think it's illustrative, in fact, in the board's decision that.

[00:23:35] Speaker 02:
But the question of law that is in front of us quite clearly, it seems to me, is

[00:23:40] Speaker 02:
What do the regulations in the statute require of a veteran when making allegations for purposes of benefits?

[00:23:52] Speaker 02:
And so what I'm trying to figure out is what do those regulations require?

[00:23:58] Speaker 02:
What regulation is it that you think governs clearly requiring this level of specificity?

[00:24:06] Speaker 00:
Well, Your Honor, again, as the board held, there is not a high level of specificity required.

[00:24:13] Speaker 00:
There just needs to be some description or identification of a body part, even in layman's language.

[00:24:19] Speaker 02:
Well, then why wouldn't you then say for

[00:24:23] Speaker 02:
all of the injuries and diseases listed in my attached medical records.

[00:24:28] Speaker 02:
I don't understand why that wouldn't suffice if there doesn't have to be a high level of specificity.

[00:24:34] Speaker 00:
Well, Your Honor, as I think the Veterans Court has held, although I'm not sure this court has, the regulations don't require the VA to go through the medical records on, I think they have termed it, an unguided safari and conjure up conditions that the applicant is not claiming for.

[00:24:50] Speaker 00:
And indeed, as a policy matter,

[00:24:53] Speaker 00:
I understand that the process is nonadversarial and the VA is supposed to sympathetically and broadly construe the claims by the veteran, but there still has to be a claim saying otherwise would essentially contravene the statutory intent and make it an unworkable burden for the VA to have to comb through every applicant's medical records based upon just a general statement that he's looking for

[00:25:20] Speaker 00:
disability benefits for anything that's noted in his medical record to figure out through his medical record every single thing that this veteran has potentially been diagnosed.

[00:25:31] Speaker 02:
So let me get this straight.

[00:25:32] Speaker 02:
Your concern is not with a veteran who has been found to have a mental health disorder that absolutely stemmed from his 1972 service and that has rendered him 100% disabled.

[00:25:48] Speaker 02:
Your concern is not that he

[00:25:52] Speaker 02:
would be disadvantaged or have trouble articulating after.

[00:25:56] Speaker 02:
He is in the midst of this mental health crisis.

[00:26:00] Speaker 02:
With particularity on the form, your concern is that it would be problematic for the VA if they had to actually look in his medical records, see that diagnosis, and recognize that as the claim.

[00:26:11] Speaker 02:
If he were to say to you, I am seeking benefits for everything in my medical records, you're concerned with the burden on the VA at that point?

[00:26:22] Speaker 02:
What about the burden on the mentally disabled veteran who is seeking benefits?

[00:26:28] Speaker 00:
Yes, Your Honor.

[00:26:29] Speaker 00:
And we certainly understand that.

[00:26:30] Speaker 00:
And that's why there is a sympathetic and liberal construction doctrine.

[00:26:33] Speaker 00:
But there still has to be a claim here.

[00:26:36] Speaker 00:
And again, in Mr. Lacoste's case, he did not bring a claim, even a general statement of intent to seek benefits for a mental or psychiatric disorder.

[00:26:46] Speaker 00:
And the board actually did.

[00:26:49] Speaker 00:
interpret his claims broadly in giving him an earlier effective date inextricably entwined with his Parkinson's disease.

[00:26:56] Speaker 00:
And although I believe Mr. Lacasse made the claim that he had received a diagnosis in 1972, the medical records themselves, although this is more of a factual question, are not clear that he received a diagnosis of a psychiatric disorder in 1972.

[00:27:11] Speaker 00:
In fact, I believe both his discharge examination

[00:27:14] Speaker 00:
and the examination he received after filing his claim put that his psychiatric and neurological findings were normal and that there was no diagnosis in the section marked for neurological and psychological findings.

[00:27:28] Speaker 00:
But again, here there is just no claim at all.

[00:27:31] Speaker 00:
So while the question of general intent to seek benefits might be alive in a different case, it is not so here and Mr. Lacoste provided no

[00:27:43] Speaker 00:
showing that he intended to seek a claim for psychiatric or mental benefits in 1972 through his claim for the five specific conditions.

[00:27:53] Speaker 00:
And again, the board recognized the correct standards in, again, finding an earlier service connection or earlier effective date for his mood disorder in connection with his Parkinson's disease.

[00:28:07] Speaker 00:
Because in that case, even though, again, Mr. Lacoste had not specifically raised the claim,

[00:28:12] Speaker 00:
The examiner found and the board adopted the finding that the psychiatric mood disorder was inextricably intertwined with the Parkinson's disease.

[00:28:22] Speaker 00:
And there is no reason to think that the board having articulated all the correct standards would have applied them one way as related to the Parkinson's and another way as related to the ulcer claim.

[00:28:34] Speaker 02:
Can you tell me what is the document on page 422 of the appendix?

[00:28:42] Speaker 00:
I believe the document on page 422 of the appendix is part of his discharge medical records.

[00:28:50] Speaker 00:
11 April 72, and they proceeded his claim by about several weeks, I think.

[00:28:57] Speaker 00:
And so I think these were part of it.

[00:28:58] Speaker 02:
So you just told us that his discharge records recognized no form of mental health disorder of any kind, yet there's a box checked for yes for nervous troubles.

[00:29:10] Speaker 02:
And I don't actually see any list anywhere for any specific mental health except for depression,

[00:29:18] Speaker 02:
I see depression.

[00:29:19] Speaker 02:
Apart from that, I don't see, is there, I mean, am I missing a line item somewhere for mental health disorders or mood disorders or something that could have been checked?

[00:29:30] Speaker 00:
Well, Your Honor, on Appendix 425, which is that same report of medical examination and history with the same date on it, April 11th, 1972,

[00:29:40] Speaker 00:
If you look at the column titled clinical evaluation, there is a list of various types of items, a few of which are marked abnormal, such as abdomen and feet.

[00:29:51] Speaker 00:
And then if you look at the bottom, there's a line for neurologic and psychiatric, which says specify any personality deviation.

[00:30:00] Speaker 00:
And both neurologic and psychiatric are marked normal as far as findings go.

[00:30:04] Speaker 02:
Was but but is am I correct in understanding the form the veteran filled out or identifying?

[00:30:11] Speaker 02:
his issues at the time of discharge included nervous trouble and

[00:30:16] Speaker 00:
Yes, I believe that it was Mr. Lacasse that filled out that first couple pages.

[00:30:23] Speaker 02:
And was this attached to his claim?

[00:30:25] Speaker 02:
It is in series.

[00:30:28] Speaker 02:
It looks like it was attached to his claim for benefits, but I can't tell for sure.

[00:30:32] Speaker 00:
I don't believe it was attached to his claim for benefits, but the VA did pull and examine these records in deciding his 1972 claim.

[00:30:41] Speaker 04:
And I think I asked your opposite number.

[00:30:43] Speaker 04:
Would he have seen the records that the RO was looking at before he decided whether to appeal or not?

[00:30:52] Speaker 00:
I can't claim for certain as to Mr. Lacoste personally, but I believe Mr. Attig was correct that it is not the general practice or was not the general practice to have shown the veteran these types of records in conjunction with his 1970 to claim.

[00:31:07] Speaker 03:
Thank you, Council.

[00:31:09] Speaker 00:
Thank you.

[00:31:09] Speaker 03:
We have your argument.

[00:31:11] Speaker 00:
Oh, sorry, Your Honor.

[00:31:12] Speaker 03:
We have your argument.

[00:31:13] Speaker 00:
Thank you, Your Honor.

[00:31:14] Speaker 03:
The time has expired.

[00:31:15] Speaker 03:
Mr. Attig, you have two minutes per bottle.

[00:31:23] Speaker 01:
Your Honor, I would point out that that document, 422, not only mentions that Mr. Lacoste is having nervous trouble, it also mentions that he's taking Valium, which I don't know as of record the extent to which Valium affects somebody's mental health or mental state of mind, but it certainly suggests that a person does not have the full capacity to know what's going on.

[00:31:41] Speaker 01:
The idea that the BVA can sympathetically read the scope of a claim while looking only at a veteran's intent to claim a particular condition

[00:31:53] Speaker 01:
it seems that those two things cannot coexist.

[00:31:57] Speaker 01:
If the court limits the sympathetic reading of the scope of a claim to specific intent to claim a particular medical condition, then it's going to run afoul of a case like Schroeder, where the veteran did not include all theories in his claim.

[00:32:13] Speaker 01:
And in fact, there were theories unknown to the veteran, and yet those are still supposed to be considered as part of the sympathetic construction.

[00:32:19] Speaker 01:
It will run contrary to Moody, where the veteran in that particular case

[00:32:23] Speaker 01:
did not claim specifically a mental health condition in a claim seeking a prostate condition, yet the court held that the BVA is supposed to sympathetically construe those pleadings.

[00:32:34] Speaker 01:
Limiting this to intent is going to specific intent to claim a particular medical condition

[00:32:40] Speaker 01:
is going to shift the burden to the veteran to identify his purpose.

[00:32:43] Speaker 04:
But at that level of specificity, I guess I am inclined to think that the Veterans Court didn't actually do that.

[00:32:49] Speaker 04:
That is, the Veterans Court's decision is, as I read it, perfectly understandable as saying, tell us what you can be expected to know.

[00:32:58] Speaker 04:
Which part of your body, including the mind and the brain in it, is

[00:33:04] Speaker 04:
bothersome what the doctors call that and how is really we don't expect you to say that.

[00:33:11] Speaker 04:
And so but you didn't even do that here.

[00:33:16] Speaker 01:
I don't think that the Veterans Court could say that because they're not able to make factual determinations in the first instance.

[00:33:22] Speaker 01:
Certainly they could review the board's determination of whether or not it did that.

[00:33:25] Speaker 01:
They didn't reach that because they said that Mr. Lacoste fails to demonstrate how evidence relating the ulcer and the mental health condition constitute intent to claim

[00:33:33] Speaker 01:
not a general class of benefits, but mental health conditions.

[00:33:37] Speaker 01:
We would ask this court to reverse the Veterans Court and to remand it to the board with instructions to specifically or sympathetically construe the scope of the 1972 claim.

[00:33:47] Speaker 01:
We would also ask the court to address the Veterans Court's decision in Brannon as to whether or not that's consistent with the sympathetic reading law.

[00:33:56] Speaker 03:
Thank you.

[00:33:56] Speaker 03:
Thank you, counsel.

[00:33:57] Speaker 03:
The case is submitted.