good morning everyone we have the panel has before it cases this morning three of them being argued and one being submitted on the briefs with the argument i will just note for the record to submit case it's number two zero zero nine dash three zero six zero zero maguire versus department of the army again that case is being submitted its decision in bernard the bernard decision found that the question of jurisdiction in the reopening of a case under thirty eight u s c fifty one eight was in fact the same matter three me three point one of the three feet was the v a is required to give written notification of its new decision they did not get written notification of its new decision and that notice under fifty one of four and under three point one yet the provisions didn't want to fight which require it to reconsider their decision after the veteran has expressed disagreement and explained to the veterans in a statement of the case when you get a new decision transfer of the board this had already happened yes prejudice had already occurred had already occurred because they had issued the supplemental state of the case which triggered by the issuance of the supplemental state of the case that this matter was considered to be part of the same appeal that was previously institute for the question of reopening under fifty one away i'm just a corporate i am one of the impression that what you were arguing maybe i misread the breach but exercise of jurisdiction by the or what happened here is the board went ahead and decided a matter that had not been previously decided by the v a the v a had not made a decision on the reopen claim except by use of a supplemental state in the case on a new material evidence they decided that the new material evidence would not change the outcome that's correct no that stuff should have been taken  procedures here one is the fifty want to wait jurisdictional determination in the original decision of the v a they said new material evidence had not been submitted an appeal was initiated and completed and the board reversed that decision and then they sent it back for a new decision instead of giving them a new decision they issued a supplemental statement of the case continuing their previously on the brewery no they being the regional office that the  border in the first instance did the correct thing because they resolved the only matter that was in appellate status the question under fifty want to wait of whether there was new material evidence and they resolved that appeal in favor of mr sit by you consideration of the really opened case the floor here is that the v a notwithstanding the fact that they issued a supplemental statement the case never did adjudicate the open play and the second matter and the board itself in it's decision in this case it paid seventy seven of the joint appendix can see that it in fact is a separate matter that what the v a did by the issuance of a supplemental of the case was improper you don't use a supplemental statement of the case to issue a new decision that has not been the subject matter of a prior statement of the case the prior statement of the case in this matter was for the question of new material evidence  decided the issue of the new material evidence to get it right the question new material evidence is no longer on the table that matter was resolved by the preceding board decision and i believe two thousand and three the board decision in two thousand and that the appropriate remedy is to vacate the board's decision and direct the board to return the matter to the v a for a decision in the first instance on the reopened class not on whether there is no immaterial lead us but on the failure or correct characterization of what happens mr sims is free to submit dish aladdin's and he gets the additional benefit of it didn't know you of that and not help presupposing there is a denial well the fact that it sent back does not necessarily mean that he will lose a lot of his reopen client and he would be entitled to submit any additional evidence that he has that has been developed in the time period from the time that well it would not be new material evidence because it would be part of the evidence in a pending claim that claim remains pending because it has never been decided on the merits by the v a in the first instance and on the three point one five statement of the case vehicle for deciding the merits what by the village on regulated three or nineteen point three one a a supplemental statement of the case is not permitted to make a new decision on a matter that was not subject seventy one of the four a on whether to under seventy want to for a it is what matter or it is to matters that's were because they addressed the new material evidence case and they said you know v v principi that the board not be making decisions on evidence not previously considered by the b s a and it is my contention that in a supplemental statement of the case you are not permitted to please the court whether there was new material evidence to reopen mr sims its claim which was previously denied for lack of service connection and whether mr simms was entitled to service connection for his psychiatric disorder or questions relating to a right there is no case that definitively states as much but we believe that jackson is persuasive in that regard and we note that was cited approvingly in jackson well yes that all issues that all questions in a matter of service connection which include both whether there was after the claim has been finally denied as this one was in one nine hundred eighty nine in order to get the service connection which is what mr simms ultimately wants reaches reopening the claim doesn't get him and i think he's trying to establish service connection in order to do that because the denial is final he needs a yes answer on two questions that's correct but i was cited approvingly for the proposition that when service connection is appealed which is what he's ultimately trying to get at all questions in that matter of service connection are within the court's jurisdiction w and we do think their reasoning in that case is persuasive we realize that this court is not bound by the decisions of the veterans court but in addition to that case just does a matter of common sense what he's trying to get is service connected not just reopening and that matter is whether he is entitled to that service connection which involves the question of reopening and the question of whether all the new evidence can establish that i just want to clarify one point because i'm afraid it's become unclear and that fair characterization of it i mean he did get the supplemental statement of the case in two thousand and four which gave him all the information about why it was decided the regulations what was relied upon he also previously got a statement of the case told him that service connection could not be established because there was not a connection between his safe yet your condition and his disability it's not a situation where for example it was remained into the regional office per consideration of service connection for his  disability and they issued a supplemental statement of the case say by the way he noticed a problem with your foot and you don't get any service connection for that either it's the same matter the service connection for his psychiatric it would also know that it may field up this court a drastic very similar claim that the supplemental statement of the case didn't give someone notice and so their appeal was not valid and they looked at the supplemental statement of the case and said that well it gave notice about whether they need to respond to a supplemental statement of the case here she knew he needed to respond because he filed an appeal and he was told that he could submit any additional evidence or information to the regional office level within submit additional whatever you know also result you know or the statement of the case isn't going to do that and the rating decision would do that and then he would get to file a notice of disagreement and then the statement of the might misunderstand my understanding of what his argument is it's not that he wants a statement of the case that he wants just a grading decision which he could file a notice that disagreement and response to which would then trigger the b a's obligation to issue a statement in the case so once he gets that decision he hasn't here from the time of that decision to file a notice that disagreement which would trigger the statement of the case  yes that's correct that's correct but we'd also just like to note that in his brief at page five mr simms admits that he does not disagree with the merits of the decision that he was not entitled to service connection this case has been