and this appeal concerns a very i think narrow issue concerning the proper interpretation of the earlier effective date provisions of thirty eight c f r section three point one five six c which is based upon the receipt of service department records that were available to the day but not obtained before the v a made a decision on the claim and the issue is whether that decision must be a final decision or whether it can be a non final decision the position of mr slayton is that the decision that's referred to in the regulation is any  is a decision which means it includes a non final the decision and the position of the secretary is that it includes a final decision as a brief bit of context section three point one five six a provides for the reopening of a finally as unique any claim on the basis of newer material evidence normally if a claim is reopened on the basis of new material evidence and awards made the effective date of the award is the date the request to reopen is made chanst subsection c three of three point one five six however set forth an exception to that general rule for reopening claims that are granted based all or in part on service department records depending on when those v a receives those records i think  helpful i'm going to quote from the the regulation you can find the regulation at page five of these and them to our brief and subsection c one of three point one five six sets forth the language that triggers the earlier effective date provisions that language states that under  notwithstanding any other section in this part at any time after v a issues a decision on a claim if v a receives or so seats with the claim to file relevant official service department records  existed and has not been associated with the claims filed when v a first decided to claim the will reconsider the claim notwithstanding paragraph a of this section let's let me i'm trying to understand the progression here though is here true that in that the r o already considered it one hundred ninety one denial and did so in light of these new records there there was a denial after the records were received there were however two denials first by the regional office and then by the board that was that denied his claims for service connection for p t before the records were received by but the bottom line is that there has been a denial after the records are received a sound of review of those records is not right well whether they were position is is that is irrelevant to the end result because even though they were they were they were his claim was denied before v a made a decision on a case  getting the records they were subsequently obtained after a j m r from the veterans court sent it back down the records were associated with the claims file and both the r o and the board still denied the claims basically because these service department records to be clear were records that confirmed the fact that the base that he was stationed at me now underwent rocket and mortar attacks and that was one of the stressors that he claimed but the very concern that that you have and that a statutory provision or the regulation of time which relied three point one five six  very concerned it's designed to address is to make sure that all of those service records get considered not to not to make sure that you win based on those service records but to make sure that they're considered an concerned i would disagree with that i think that the that the remedial aspect of that is greater than that that the remedial aspect of that that is to ensure that the v a collects all of ailill records before ren ring a decision in the case well i think i don't necessarily disagree and see a lot of distance between what how to john now we characterize the regulation and you my concern is that that was satisfied in ninety five certainly the regulation is to deal with if he got rejected in ninety one and he didn't get that they didn't consider the service records at all until two thousand and eight when the regulation deals with if new service records come in that were previously unavailable you ought to get the benefit of the filing date on the previous case with the decision was done in the absence of the records it seems to me that the particular circumstance here just don't that mold because let me just finish and then you can respond because you had a subsequent subsequent to ninety one you had a second to two cation in ninety five and ninety five they did have all of the services so clearly based on the service records you were going to win you would have gotten back tracked in ninety five to ninety one but i'm not understanding how you can to hone her on your facts into this regulation because in order to in order to find that that is the purpose of regulation you need to go back to the words of the regulation right and looking at the words and well in the way that you have interpreted it is exactly the way that the veterans who are interpreted by including a finale the requirement that is not there and i would like to just briefly give three rules of statutory construction that where are you thinking that i'm adding a limitation that doesn't exist well partly because notwithstanding any any other section in this part at any time after v eight issues a decision on a claim the veterans court read that to me any time after the eight issues a final decision on a claim and further on down where it says where it says records that existed and had not been associated with the flames file when eighth first decided to claim the veterans court interpreted that as when be a first finally decided to claim and the reason why i think that that that you need to focus on that language  why a decision on a claim is different than a final decision but that in the fact that it uses the word that the v a instead of r o actually imply that it talking about something farther the rules of construction and interpretations that courts do not add words to regulations or statutes that change their meaning they especially don't do it when in that same regulation in part a the drafters specifically used refers the term finally adjudicated claim now if they were referring to a final claim as part of subsection c they would have very easily added that language their courts presume the fact that when you use one term in one section of a regulation but declined to use that same term in another section regulation it implies a difference and i just get i mean some basic clarification because maybe i just don't understand how this case went down what is the significance of the distinction you're drawing tween a final decision and decision does that mean that you want to k not triggered unless the records are received after a final decision then he loses because because because the language says that they have they will receive before a would concede the effective date is two thousand and two right yes because they were all out only now that nine hundred ninety one claim was reconsidered and then a later decision was made in light of the new record correct well they're actually what what is it that you wants to when there are actually two different reconsiderations because you had the way that this went down factually d they don't obtain his service records he gives off a number of stressors they don't obtain any service records that might verify that then they do and you're not objecting to any of that no then well then they then they do get them after they have been ordered to do that by the veterans court they get those back they still denied they still haven't given him a v a psychological exam and when regulation is because they the r o f they got the records the r o and the board still denies the claim because they didn't think that rocket and mortar attacks were sufficient legal stress or for this he did not appeal those claims ok so they became final but in two thousand and two he we had the claim reopened based on new and material stressor evidence different from the rocket and mortar fire that at that point  attack is a legally sufficient stressor we want you to have v a medical examiner examined him to determine whether he has p t s d and to determine whether or not that those rocket or mortar attacks and if they had done what that basically if they had followed that procedure when he for if they had gotten those records when he first filed his claim in the early ninety's and then given him a  obligation to fully in sympathetically develop the record they did not do that in this case but that's a different plane it's a different plane maybe this is but this is a this is a specific regulation that is directed at not whether or not he gets to claim reopen they go to schools to the earlier effective date goes the effective date of the regulation and basically they're saying with a specific type of record the service department records  if they are not obtained then he is entitled to reconsideration to an effective date that goes back as far as the date of the remedy you're asking us for is to ask them to reconsider based on the very records that every looked at and they'll reach the same conclusion no no no the the the records they looked at helped them to decide that his claim was service connected and  because of the general rule regarding effective date on reopen claims they assign the effective date as to the date of the that he file the crew a quest to reopen sort of like a retrospective disability evaluation and it can be as early as the date he files original claim it might be some date later than that and his level of disability may be different over that or that  section three point one five six to include a finale requirement that if records are received after any v a decision final or not it doesn't matter if it becomes final later on if the claim disability that's correct because what subsection c one says says is the century that in order for you to go back to the earlier affected date you have to establish with medical evidence that they say they suffered the particular disability or injury at a particular time and the percentage of disability can be different over time but the point here is a set and one thing that i would like to get out in the last few minutes is that what we're also missing here is the fact that the regulation c last one starts off with the provision notwithstanding any other section reopening of the claim but for the separate action of reconsidering the effective date of a claim there is no mention of the word final in there it just says a the a decision they could have very easily put in front a final be a decision in there but they did not just as just as they had in subsection any and the fact that they did not do that courts have used that as an indicator that they did not intend for that term to be there and that's only made even more relevant by the fact that they begin off a section with notwithstanding any other section it means without regard to whatever other sections are here this is going to be read on its own and the with the date of his p t s d diagnosis the act it was in  thousand one of the border station is recognized that there were medical treatment records that diagnosed him with p t s d in one nine hundred ninety five and that was just shortly before they received the service department still denied his claim because if you read their decisions they did not believe that the stress or evidence that the rocket or mortar fire attacks were sufficient legal stressors for p t s d right and it was two thousand and two that they got more evidence relating to that right in two thousand and two they reopen the file based on new and material stress or evidence but it was unrelated to the rocket and mortar fire tactics he had come up with the names of witnesses who had seen him have to handle the bodies of suicide bombers and things of that nature but the focus of the reaming and after the board reopen the claim and sent it back down to the regional office was on the rocket and mortar fire attack and essentially saying look at this case have to give him a v a examination have the doctor determine whether or not these  that particular stressor of the rocket or mortar attacks could have caused that and they did and the decision was based upon the service apartment records because the v doctor's opinion which was used as the basis to grant service connection referenced the rocket and mortar fire attacks and then the aros decision they ran service connection they twice mentioned d the granted benefits was based in was based upon his service records the problem with that claim is that on page one forty two of the record the board found exactly the opposite they state his his grant of of these benefits was not based upon service records so to the extent he's making that contention that contention would be contrary to findings of fact made at the board level this court doesn't have jurisdiction group view and it's not appropriate for this work but setting that aside more to the point mr slayings interpretation the regulation creates an inherently arbitrary situation in which two similarly situated veterans both of whom have their claims denied after the review of their in service records both of whom produce new material evidence resulting in an award of benefits received a completely different effective date merely because at some point one of the veterans had relevant records missing from his claims file and the other did not meet it's clear that the department of veterans affairs considered his in service records mean minute earlier proceeding in the earlier proceeding us correct did consider those records  with regards to the question of whether or not a final decision is required as we set forth in our brief we disagree with mr slayton that they required a final decision at any level unless they know that the impact of a final decision and a final decision can have an impact on these proceedings there are separate regulations talking about the effect of final proceedings their regulations which talk about the effective date in a new and material evidence claim all of those effective date provisions reconsideration going on in other words what he's seeking is what happened here what in two thousand and two was that the da had his claim open based upon human material evidence that would be three point one five six s and assigned him consistent with the regulations and effective date based upon that reopening on new and material evidence earlier they had considered his claims th his claims based upon based upon service records but that reopening was not occurring in two thousand and two you cannot sever see one and see three at point mr sla does bring the two together but it's a selective use of c one the words notwithstanding from c one is pulled into c three even though c three talking about effective date never uses the word notwithstanding any other section c three doesn't set aside three point one four zero zero q two at all or are to the extent he raises those actually follow the government's benefits there are more specific provisions there are more specific regulations relating to you in which your eleven's with this case is ultimately about simply when you say i'm sorry i want to go back to somebody said before when you said that the board made that facility finding a fact said that it was not yet reopened because of the the new service records the problem is when the board makes that finding a fact it doesn't say what it was reopened for and so what is your position that as what prompted the reopening then if that wasn't the new service records relating to the stress well throughout throughout the record it's based  upon new material evidence it's a little confusing what exactly that new material evidence is because i don't think anywhere in the record they cite all of the new material evidence they talk about as testimony in the r o decision they describe the new material evidence as relating to mortar attacks you want to board decision to talk about new material evidence talking about bodies taken off of the truck and it's unclear what exactly the connection is between those two but i mean the the aros decision does talk about the new in vietnam and his service to his country's going to be part of the grant his claim will be based in part on that so simply having that that information contained in your service records is not to need to be based upon the service records and i think that's also clear when you look at in the appendix to the to mr slater's brief he contains he's attached the proposed rules for one's regulations first promulgated and they discussed exactly what they mean about a decision based all or in part and they talk about the situation where you have account someone brings a is denied based upon say there's no in service trust or there's no in service of her subsequently is records are obtained and then after his records are pained normally he might get service connection but he might record does remedy a specific situation where your records come in and they establish an element of your client but there are a stylish and i don't know your claim in this case to reconsider the ultimate grant this benefit was not based upon the service records it was new evidence of new events that took place this is helping the veteran by coming forward with further description of what happened during service not afterwards and eventually the a agreed that this was the the situation of medical situation service connected and what i have trouble with understanding is trouble with understanding why the veteran doesn't have the benefit of his first filing requesting service connection even though it took him quite a while to obtain sufficient evidence the v a this situation is unchanged and the source was his time of service so something that happened subsequently and it does look as if that introductory phrase is in the c one that notwithstanding anything else is trying to fly a more generous standard to this you terminations that when the facts are finally established as they are  to consider all of this evidence i'll call it retrospectively as of the time of the initial filing because the evidence or the facts already existed they just hadn't been brought to the attention of the v were service records that were not associated with its file the two they already think the problem is the problem is they already did that and c three the earlier i mean the reopening was not a reopening based upon c one and any  substance such a cheery construction hostile to everything that the veteran eventually a set list without dispute that's absolutely incorrect your honor because they considered his records in to exactly similar similarly situated veterans to get different effective date based merely upon a a procedural quirk on when in both cases the v a did always consider their service records very carefully and they did consider their service records here again it was a new material evidence that made the difference see one rectify situations becomes clear when you read also see two where the veteran has been put in a situation where his claim is denied because the v a for some reason whether through error oversight or otherwise failed to consider his records fail to associate his records with the file and his denial was in that situation absolutely incorrect so without having to show new material evidence without even having show clear and simple error without any of those predicates the v a is required to reconsider his client but that does not apply when that psychological disability we're not able to pull it off together the first time around it took you quite a while and therefore you will suffer for or your honor all i can say is in the case of clear and unmistakable error he does get the benefit of the earlier effect today so if this had been a claim of clear and unmistakable error yes he would have gotten the earlier benefit but no in the case of new material evidence want to address what i think it was a problem for me in the government's briefing because they think that they conflate two propositions reopening and reconsidering at several points during their brief and i believe during his argument today he asserted that the claim was not reopened and granted based upon the service department records well those are two different things if half right and half wrong the claim was not reopened based upon the service department records they were not new and material evidence that allowed for the claim to be reopened that is correct the claim was reopened and when you when you look at the board decision that did reopen it i think you will see that what they focused on were the identities and names and i guess names of people that were witnesses to certain other things concerning him handling that bodies that was the basis for them reopening the clay but the service department records clearly were a basis for granting benefits wants to claim was reopened and that's clear from a review of the regional offices decision you know indicating that these records were what they did was they corroborated the rocket and mortar fire which were a legally sufficient trigger for  s p t s d and therefore it was based on that so i think that you have to keep those two concepts separate they kind of conflate the two that are in there there is they also make the argument or at least this is another argument of the veterans who are threw in a basically one sentence that the effect earlier affected a provisions did not apply because the claim was not reopened based upon the service department records it's our position that they do not have to be reopened if the claim is reopened for any basis whatsoever then you substitute just with respect to assigning an earlier effective date with respect to only service department records that were obtained the for the decision was made  and that the veteran should not have to go through the mountains of acute claim that burden to achieve that burden in order to get the effective date  point one it's meant to be an easier way for him to get the an effective date to claim means it's all reopened to determine whether or not he gets that gets benefits or earlier effect today this subsection c that one is limited to the effective date and the fact of the matter i'll just close with this the fact of the matter is here when you look at the record nothing changed from the nine hundred ninety six final decision that night him denied him benefit and the two thousand and two decision that reopened the claim and granted him service connection benefits nothing had changed the only thing that changed was that the board finally told the aro that you need to take a closer look at the stress or evidence just basically they told them when you look at the instructions that they gave them they basically told them this is a changed except that they determined that the that this they wanted them to look again at this particular stress and let's anybody have any questions on you