now we've got a little bit of an unusual circumstance this morning because we're hearing three to three separate cases consolidated together with three different advocates the cases are fifteen seven o six one fifteen seven of all in case number fifty seven sixty one our petition raises two issues the first issue is the v a rules changes to the informal claim system of a claim initiation of states the second system to be as informal and not adversarial as possible that informality is especially critical of the claim initiation stage when the veteran is almost invariably and assisted by counsel and is in fact statutorily prohibited from paying for that congress have put in place and the v a has implemented has been the principle that a veteran will not be deprived deprived of the full extent of his earned benefits just because the fair first submission requesting those benefits  quarter principle that had been the law for eight years and for that reason there concrete the statute can i ask you suppose that just put aside for a minute it is an important argument that you make which is that that core principle standardization no absolutely not on non rational connection we are not taking issue with the fact that the introduction offering staind are formed as an option is a rational decision and we in fact favored the and you you simply pass that over by saying right but but if you just say that them by saying right you've conceded your entire hypothetical argument and move back to the efficiency gain i think page thirty one of thirty two of its brief from having a single form that clearly communicates either filled out on the telephone or still doubt online or filled out on paper but a single form that eliminates work that would otherwise have to be done by the v a to figure out whether they had one of these starting but that work has to be done by the v a in any event and that if you know the pre prepared the asli is it not right that when they got a you know handwritten letter and they were evaluating it for purposes of deciding whether it started  the effective date clock they would have to scrutinize it to figure out if it said enough about the condition because that they've sort of dropped out but there used to be some analysis of more than name social security number and i'm going to file a claim so why doesn't that make things easier which i take as the principal point that they raise for saying here's why it's rational and i know you're eager to answer so go ahead because capricious not just because it's the previous rule may have may have been inefficient the point is that the new rule that the official way to to accomplish the goal that the v a is the speaks for itself is simply to say we will no longer require identification of a specific condition just as the intent to file form which they have introduced does that all we are saying is that the efficient way to address their policy goal in the only rational way and they are the way that does not impose a needed if that's the position you're advocating is one kind of along the line you want to take the what you like about the v a regulation the changes that you like but then also expand them to be the form of the previous system is that what you're advocat policy choice which is arbitrary and capricious but what about the phone call aspect of it that was at i mean doesn't that make it very easy for claimants to pursue this process any in fact and certainly specs easier when we're talking here is what what action creates the placeholder for being able to go back one year in terms of benefits if you prevail on the benefit question right so isn't it in certain respects really much easier to deal with the new system than it was the old again we don't take issue with the fact that the new system does incorporate some overdue aspects of modernization to the v a system we don't take issue with that proposition the proposition that we take issue with is just that those changes are required to the exclusion of other changes those of other systems which if one is to consider a rational system that does not unnecessarily penalize vulnerable batteries must be emplaced but if you recognize that certain changes are are over due that's because part of that is the need for uniformity and the need for clarity so that there's it is a more efficient system so if that's the case why aren't the regulations as they've been constituted sufficient to us at least under reasonable standard because we're not asking to strike down all the regulations that have been imposed all we are asking to strike down and for the lawful is the requirement that only those new systems be used since continuing certain aspects limited aspects of the and has another question i don't want to hear about the second issue but if somebody else is going to address that i'm happy to wait for that but i i think it was a very briefly just say no go ahead with no problem with the i think you just said that what the v a has said is that it will not develop the evidence on let's call it the unrelated second condition i think we're on the same page about what that is right i didn't remember that that's what the v a had said only that in developing whatever the evidence in the investigation of claim one reveals some of what it read reveals will have to be filed with a second claim with a accordingly later effective but not that they wouldn't develop the  regulation three point one five five d two a j thirty eight in this case says the one to receive the complete claim v a will adjudicate as part of the claim entitlement to any and salary benefits that arise as a result of that education and then it goes on to say the v a will also consider all a medical evidence of record in order to adjudicate entitlement to benefits for the claim condition as well entitlement to any additional benefits or complication of the claim condition right but i took that language to mean that it would only do what it judy kate only conditions related to condition number one but not that in the course of that it wouldn't develop the evidence for condition number two if it came to it it would just tell the claimant this you know this is about the needy and not the elbow and in this case the knee in the elbow conditions are unrelated so you only filed about the need and if you've got a claim about the elbow you've got to file a new claim and a new starting date but right is have i misunderstood what what the v a has indicated would be to give not indicated anywhere or under the regulations now that would actually under under the final rule an issue that is not factual medical or college will cause a relationship to any of the symptoms are conditions identified understand or form by that they mean basically the second condition in terms of the transfer of hypothetical would not be considered part of the claim at that point if a condition is not considered part of the claim there is nothing that the v a is required to do that not acknowledge any requirement to do anything all we are saying and how does this differ from what existed in the prior system because i think there might be some dispute between the parties in terms of how the v a handled this historically there is some dispute between the parties about how the v a has handled this kind of issue in the past largely because as we know from the roberts like that line of cases mirage andrea and benefits or complications of actually raised expressly raise claims well there's a and robson as i recall involved t d i you know which one could at least i think fairly argue was kind of a separate issue it's not a please separate claim but it's  a claim for something that builds on to the claim that was initially requested did any of the other cases you just referenced deal with really different conditions and completely different claims or where they also kind of t d i you issues that were not  an orange registry form which listed a number of one condition dermatitis in particular and then the question arose whether that express of intent to apply for benefits accompanied by evidence happens if you have a claim for something a problem with unique and it turns out there's some evidence in the record that you've got some symptoms of p t s d but is it your view that under the prior system the v a having uncovered some suggestion of identify that claim and ask the better whether he wanted to pursue that claim that is the duty to develop the claim which is reflected in robert's enough one thing i want to make clear is we're not saying that any sort of medical condition the somehow arises on the evidence is subject to this to this roberson duty to develop what we are saying is that could this shows that our unambiguous on the face of the of the evidence and for which entitlement to benefits is also the biggest on the face of the evidence are subject to this duty them the v a says and it's great that they would probably construe the scope of all symptoms or conditions identified on the application and i take that is making me feel warm and fuzzy except that they cite to the federal register fourteen and fifteen in the in the appendix and i don't entirely derive  that sentence out of the federal register what your take on was because if if they if you say in passing you know i making a claim on my knee and by the way i symptom they take the position that at least as a matter of principle they would develop it but the duty to develop comes up in a different context which is the veteran knows that it may be entitled to benefits for one condition but just doesn't know that they may be entitled to benefits for another condition so that condition is not on the application but it's clearly on the face of clear on the face of the of the evidence before the agency the docket the better also has their separate conditions and it's also clear to the agency that their service connection and that the veteran is entitled to the benefit the v a says under roberson we have no duty to do anything at all with that claim we are saying no you have a duty to develop but they say they would broadly construe the scope of all symptoms symptoms or conditions identified in the application form so that if the vet identifies that symptom that's correct but the vet has no if the vet was no idea he may be entitled to benefits you be satisfied if the it was clear that the v a had an obligation or intended to take then tell the veteran if new material is uncovered you need to file a claim on this or is your concern and your insistence on the fact that that has to for your own here and your minute that that may be a good thing  brzezinski for veterans justice group my principal focus is intended to be on the notice of disagreement but of course we'll be happy to discuss our position on the other issues  petitioners are here today because the v a has gone well beyond requiring standardized forms in fact i think all of the petitioners agree that standardization i think any level is appropriate action for the secretary to continuously consider and this particular action to standardize forms in principle is very beneficial to both the veteran and the v a however the secretary has gone well beyond that in this rule making  to tell us on the notice of disagreement what the prior practice was and what the rate how the regulations change that prior practice the prior practice is illustrated in the joint appendix on three three four which is a notice of disagreement which i for three four and then the subsequent approval of that notice a disagreement on the following three pages it was very clear and accepted for the decades that i've been in this business that the determination that  the you had to identify was the date of the rating decision that the determination was the rating decision not the issues within the rating decision and if you can see this notice of disagreement t sentences essentially says we disagree with the rating decision dated and wish to appeal the issues they're in to do i understand i'm just asking in the the new regulatory regime can you fill in the box on the form that says essentially what your three three four letter said i disagree with and seek review of decision contained in that decision i thought absolutely not your honor and as a matter of fact as i will point out later of the form nine which has been required for decades we have actually back into the sixty's at rating decision you have one year to file a notice of disagreement then following a notice of disagreement the v a will eventually files prepare a statement of the case which by statute is required to discuss the issues within the rating decision at seventy one zero five b three then the now appellant can perfect that appeal by filing a v a for nine which has been required for decades as i said on the v a form nine there are two check boxes even though it's recently been moved from the top to the bottom one check boxes i want to appeal paul the issues in the statement of the case and any subsequent supplemental statement of the cases in a second box as i only wish to people following the issues that is completely contrary to the logic in the brief by the secretary and the rule making in that the more specific requirement for the perfection allows you to check a box this is all when you're allowed to have paid counsel to advise you and in many cases my advice is we don't want to i appeal them all we want to appeal to these because these are the ones that were wrong up front in the current case the before does not contain an all box it asks you for the date that you're talking about middle of the form number is a twenty one zero nine five eight and it also asks for the date of the rating cision but then it has in the middle area of disagreement the check boxes are service connection effective date evaluation disability or other and it shows you have to list those issues so i just said i think it's maybe in the third case j to ninety five so i think that's what i'm looking at this is what was a form nine five eight yes it is and as you will see the issue there is it is a more specific the specification is the issue that we have you have an unrepresented veteran largely who is prohibited by statute from getting in arranging paid counsel and he's asked and required now under penalty of permanent deprivation to identify the specific issues that he or she disagrees with this particularly troubling when you're appealing the failure to have to address an issue which i will represent in my practice is largely the issues that we are raising because the rating decision did not address something so in this case this and this form if we're looking at the same thing in the middle column itemizes service connection effective day evaluation of disability other and the problem i gather is that you don't think that that allows somebody just to right all in the left column and the break down into three plus a catchall might be misleading demand too much in in the filing of the notice absolutely absolutely not your honor you cannot i would submit under the rule the brief as well as the specifics of the rule itself you must specify the issues were those issues are lost and that is our complaint if without if you over check what's the result that is veterans it sounds as checks all the boxes where you still have to have the specific area of disagreement and this was ific area this agreement maybe you did not consider for example m twenty one section so so q dot ten which tells you that i am of that you're supposed to do something because i'm a thailand agent orange all right just putting in your all just putting in a specific area of disagreement i didn't get the benefits to which i was entitle i believe it is very clear that is exactly what the rule making is trying to prevent you know what or why change and why change it all now and in practice good practitioners don't just put in the example i showed you that was under the short term we needed to get something in the whole place will we will explain why we believe says if the claimant wishes to appeal all of the issues decided by the agency of original jurisdiction the form must clearly indicate that intent doesn't that indicate that putting th explanation for this is that this is required to save them process to be a fish and i submit that putting all on here under the explanation given will not end up in the same result but i maybe talk about something else but also i understood the regulation of mr hockey can correct me if i'm wrong when we hear from him that under nineteen point two four b won it also says that if the the form is inadequate or incorrect the the claimant does not have to cure a correct it's warm and must the be a informs him that is formless incomplete and request clarification is that your understanding so if you get a form that says all that you say would be treated as an adequate the v a can't just throw it away or reject it it has it's required to go back to the claimant and tell him or her that this is an adequate for some such and such reasons and give him a chance then we've defeated the entire purpose for the room because if you have a form which is so unclear and ambiguous that you have to ask for clarification what's the difference between that form and a notification on a letter  i would accept if they saw forms and i put a box you'd have an unrepresented veteran who is getting the documents he doesn't understand in some cases still one liners that say you know we didn't see it in your service record goodbye and there's no box on here to says i'm just disagreeing with everything and the write up here is not the brief does not say i'll just put all in there if the fans the specificity you know we see so many submitted  if if indeed that the whole purpose of the end of the portion of this room making is to become more efficient then you need to swap the forms say all that's the whole purpose they're violating the point here is statutory congress was very explicit this is a three step process i think both sides agree that three step process could be better as a two step process but it is a three step process we can change it be a should not be able to change it for efficiency was given for shortening the one year period to thirty days and all also for authorizing the board on its own two to initially review evidence they said it was officials say we need to shorten things but they haven't said in this other than pointing that out to you as well but they also haven't identified is any alternatives to all this tumult they don't even index their own files talk about an inefficiency index the files everyone could find useful you can find a form inside of a ten thousand page file any quicker than you can find my one page letter well just because there's more work to be done doesn't necessarily mean that this isn't an appropriate first step i mean to take a point but that doesn't really get us to where he will but there are no contemplation of alternatives they jump to this in reaction and that is a technical requirement of a rule might be like this has to have a factual basis they've identified lots of problems we agree they have all those problems with they didn't say was and we've looked at this and we can save fourteen days out of our twenty two day average to route mail from the mail room to a desk by they say we have a problem we're going to require all these forms there isn't as strictly a p a matter this room making fails because there's no evidence for anything to civically the n o d was based on evidence from a regional office that just that it was found to have been cooking the books nothing else was provided as a matter of fact it's the use of four nine that form now takes from the time they fill out that form to actually get certified to the board is twice this long as it is from use of the n o d without the form two when they actually issue an shows that they're expecting about sixty sixty to seventy thousand appeals so those would be the four not the n o d's are somewhat larger than that because they get whittled down so we once had a million claim backlog appeals where less than half of that if i recall we're talking hundred thousand maybe more but in that that range probably several hundred thousand as we move forward the point is the evidence that was has to process the nod for notice of disagreement therefore the evidence underlying the entire premise does not exist or cuts against thank you thank you will we a cork and carpenter appearing on behalf of the national organization of veterans advocates to begin with your question tried to approach the national organization of veterans advocates has two problems with this regulation that we would like the court will address the first is that the filing is mandatory and not permissive on their standardize for in other words standardized form is fine but why must it be mandatory why must all veterans be required to do that in the preceding sixty plus years that the statute has been in place in this statute is thirty eight u s c section seventy one zero five the process has been you file a notice of disagreement with the decision that is made the v a responds with a statement a case you complete your appeal i know of no other administrative process that requires a apelin appellant to affirm twice that they wish to appeal but that is the statutory requirement under seventy one off on a notice of agreement and then the later and then the later but the telly so if they file a notice of disagreement with the written decision at that point the regional office or the original jurisdiction office whatever it's currently called can upon reviewing its initial decision actually change its mind right and then right well  well if you're asking for my personal opinion as to whether it makes sense no your honor makes absolutely no sense it is a redundant system that made sense when there was no judicial review because you were trying to make sure that everything was put into the pot if you will to go for the only were view that you were going to get by the board about principia there was no appeal after the board of veterans appeals you simply had to start over with new and material maybe maybe you can just tell me why my current picture of this is wrong so my current picture is the regional office issues a written decision the veteran says i disagree with  effective date or or something the regional office says in making in reviewing and in writing up the statement of the case says oh i i now see that i was wrong about this so i'm  giving you more than i was giving you the first time the veteran still disagrees now with a somewhat more favorable but not favorable enough statement of the case and now files an appeal where the grounds of that appeal are actually narrower than the grounds of the notice of disagreement isn't what's it or not the way it works or it's and it's and that does work in that particular circumstance where it doesn't work is where you have multiple claims that are being made and one of the things that i think is important for this court to really focus in on and examining this regulation is what the statute says the statute is seventy one of five says is that the notice of disagreement is intended for a single purpose to initiate an appeal what it doesn't say unfortunately is what you are initiating that appeal for all in order to understand that you have to read the preceding section which is seventy one hundred four which is that the secretary makes one decision that may be reviewed and that review is conducted by the board of veterans appeals so what we're appealing if you will is the decision what is problematic in my view with the v a s form is that nowhere in the form does it say identify the decision with which you have your disagreement that's all that the notice of disagreement is required to do by statute what it does instead is to create a subset of descriptor orders such as issues and nothing in the statute says that you're appealing issues and then it says areas of disagreement now we end up having three different concepts and then you throw the third in which this court did in the earlier questioning of my colleagues which talks about claims when there are multiple claims are you expressing disagreement with a claim or are you expressing disagreement with a decision mice a suggestion is that the only way that seventy one of five can be read is that you are expressing disagreement with the decision of the secretary because it is the decision of the secretary under seventy one hundred four which is being appealed for review by the board of veterans  therefore all that is required and should be required by a v a standardise form is to say that i express disagreement with the decision made to deny that it wit the decision made by the v a to go into any more detail take out of play the second step which is contemplated by congress which is for the v a to take a second look once disagreement has  been identified or expressed by the veteran mr governor yesterday you were willing really are to give us your personal opinion on something so you've thought about this as a big picture for a lot  a legitimately balance overall benefits for all veterans against an increased difficulty for certain individuals that are no i think that's fundamentally  in a positive to the even though even though you know my in my in my question overall it's clearly weighs in favor of all that well because i don't believe it does clearly what can they do that no i do not believe they can you want to be no one is it's this statute we're dealing with seventy one zero five and the only instruction we have from congress is that the function of seventy one zero five a for the notice of disagreement is the single function of an issue dating an appeal to start the appeal process of the start your engines at the indianapolis five hundred that's all you're dropping the flag to let the v a know simply put them on notice that the veteran wishes to appeal there is no other purpose served by the notice of disagreement and the creation of this mandatory form starts itemizing the things that you must have and if you don't have them then we're going to consider them waived and that converts this non adversarial system into a gotcha adversarial system which is not the intent of congress the intent of congress with the initiation of an appeal was simply to put the v a on notice it is no more complex than that and they have created a level of complexity that makes it difficult quite candidly for attorneys to understand how to do this how do we how did we i am going to turn and i can ask what is what is your take on the question we were discussing earlier about whether writing the word all  you know saying something in the relevant boxes to the effect everything you said in your written description is wrong from a to z or to all i disagree with it all i mean i guess this is been in effect now for six months i don't know whether you have any experience and i hope yes i have literally hundreds of me and i realize this is not part of the record in the room making but are they accepting of or as well as if i had said writing back and saying this is not acceptable do better and they have been writing back saying it's not acceptable because they don't like my attachments because my attachments don't fit into therefore that they want answers to ten and when i say see attachment and i outlined specifically in several pages well maybe that's in a corporation problem rather than a well i don't believe it is wrong or because the problem right is they want it to fit into i say it all and this is where the perception the use of precision in our description of what we're dealing with here in terms of decision versus issue versus claim is critically important because this court has recently issued an opinion that deals with issue exhaustion and issue is what's identified in the notice of disagreement decision is not what's  there and this is the set up for issue exhaustion and issue waiver and that's not the intent of seventy one five seventy one of five has a single limited purpose to initiate the appeal one about whether or not to answer the no box would be sufficient i am not sure in my view that there is a quote problem with that however i do not believe that it is required by or should be required by this court or to permit the v a to even require that as part of a notice of disagreement for all the notice of disagreement form should be saying is there was a decision made or i received notice from the v a on this date and i expressed disagreement and wish to initiate an appeal ironically they have taken that out of therefore there is no longer in the form any requirement to express a desire to appeal so they have made a form that is very convenient and no doubt will be very efficient for the v a but it is not what is contemplated by the statu is contemplated by the statute is a single concept which is to initiate an appeal thank you thank you very much or perhaps a good way to do it taking advantage of the technological advancements we've had since one thousand twenty one closing the telephone but what i've heard today frankly are a lot of concerns about hypothetical situations so what i've heard are a lot of potential as applied challenges down the road but every time i think we talk about what the regulations do we find out that the regulations don't do what has been suggested and in the briefs the regulations don't walk roberson or any of those are going to exist but all that just to start being concrete about it and and i guess working backwards since we were just talking about the doesn't notice of disagreement what do you what is the s position i guess first about what the form itself actually requires and for at least i'm quite focused on this this question can the veteran say all and not more and to the and i guess mr carpenter you know answered my question about how are things going now and he says he's getting some reaction from the v a saying no this is not a good enough for me you have to do something can you clarify what you think is actually required by this for i can answer the first question for sure your honor because it's plainly in the regulation second answer about what mr carter's been experiencing i don't know if if he thinks he's satisfied the requirement in the regulation which is to identify the issues by adding an attachment rather than putting a line in there i would suspect maybe somebody at that our own needs to be talked to but as far as what's required in whether somebody can answer their question in the energy by saying paul i i refer of course i think it's just prose mentioned to twenty point two zero one four and which is it which the form says if the claimant wishes to appeal all of us is decided by the agency of original jurisdiction the form is clearly indicate that intent so our understanding of this regulation is that somebody says done by rule making well can i just say this i would have preferred of knowing that there was a concern about some box on the form prior to coming here to that sort of the so it's but so let me let me ask you i mean what was the state of the a comment of the record in the rule making about comments did somebody say part of the problem with that that there's an argument that the form simply shouldn't be required the kind of thing that mr carpenter was arguing about decisions and issues and claims and against tradition and so on but the particular argument that at least we've been focusing on a little bit here about whether a simple i disagree with everything would suffice was that a comment to put to the v a with respect to this for the comments that i recall being related to the energy issue were all about specificity not so much that someone couldn't respond to the form by saying all or that there was a mix missing like there is on the v a form nine that says all fact frankly when i heard the argument i thought there was a box on this forum that said all and and i can say that although i am not the secretary or even with department the secretary has been made aware of the desire by at least certain people to have a box on the form and i don't think even the court needs to say anything more about that although of course free to obviously well except if i mean if this is a form that veterans often on council will be reading and it is not i would say apparent on the face of the form that that would suffice the form tends to suggest that something more is required hence my question if if all would suffice do does the v a have to go through notice and comment rule making to change the form was this form specifically adopted as part of the regulation or was there a kind of incorporation by reference of a form of this regulation with respect to the n o d is if if the v a thinks that they don't understand the response it's incumbent upon the v a to go back to the claimant and clarify that so that if somebody puts all on that's going to be good enough and if the v a if the aro has some concern about that it's up to the aro to go back to the individual and say what do you mean by all which i hope would not be a question ever asked but if it was that would be the mechanism by which they would do it no i know the judge to rondo's fine is obviously suffice that's the point i think we're time well i mean i can say this trying to point taken about if there isn't a box on there for all and i don't think that but i can answer the question standing here as to whether or not that would require an additional rulemaking legion claims that the final rule will likely have a disproportionate impact on the most disadvantaged that the blind the elderly the poor and will save the v a no work that's a quote from them they say the v a must still review informal submissions as they are received and as a consequence the workload is going to be the same is that correct application of pieces of paper and they look one hundred different ways you impose a system in which you say please just put the same information or as the court i may be as noted earlier and if not it's in the briefs maybe even less information than you used to have on this form so we can identify it when it comes and that's a claim that's a minute that's a quick if you now have ten percent of people who are no longer following that practice you have ninety percent that are you have that much less work to do when you're going through it so yes the v a continues to go through all this missions to try to determine whether there's a potential claim there but now ninety percent of them are obvious on their face of their claim to know time is being wasted trying to decipher analyze interpret and although that function might still exist it's now limited to those ten percent or less and as we expect significantly less forms that for whatever reason are not  wondering if that was actually correct if if if the v a has some sort of statistics on who uses the informal claims process well prior to this right to this reg change understand that argument the idea that the rule change simply says put the same information or less on a form or in a phone call or on a computer so the argument that someone who has trouble seeing or whatever that would apply to the old rules well they would have trouble writing something down on a piece of paper or doing whatever all we're doing is saying if you use this piece of paper we can find it a lot quicker so what happens if i submit a piece of paper you know the way one could under the old system and it's just a letter and if you say do they go back they take that they call you and they say they send you the application package under fifty one or two a or b and they explain to you that there are so that you have to do it fill out this form and so if you understand my understanding correctly part of the concern raised by the other side is not only the adversity faced by having to do the form itself but also the question of the effective date of the  amount if you are ultimately awarded right so is i just want make sure i'm understanding so their concern is you send a letter now and it's affected through the process but if you ultimately are successful you'll get time back you'll get  pay from the east from the feds the initiation of that letter and now they're saying that you will only get back pay from the initiation of that form that's been sent to you as a result of that letter when i or a phone call or or the form that you've got from the v or or the premise is that folks won't fall direction so the premise is that the old rule people will ignore the new role and simply continue to file the old rule and they will be putting themselves at risk for some sort of deprivation of effective date benefits because of the way well their main argument is an attempt under chevron stuff want to stop the rulemaking by arguing that fifty one zero two c prevents the secretary from identifying what is required for purposes of an application which would be odd given that if there were no teeth to see did that then why would congress retain the authority for the secretary to do what he doesn't fit when one which is t specifically identify the form so that's their that's their main are when we get into the second part of it it becomes sort of where is it fair to draw a line by requiring rather rather than not requiring and i think we've already discussed the answer to that as well without requiring then nobody will do it in there is no efficiency gain when we really all agree that something needs to be done and we have a failsafe step for those people who for whatever reason don't bother when they when they get to claim a new claim it's a claim when a new claimant gets a claim there their belief is that that claim is going to do what the old rule required and not bother to contact v a when they weren't part of that overall system why would they assume that they can do something that they were never a part of the new claimants going to call the v a and say how do i thought one website and so how do i file a claim and right there are your three options to file these intends to file work go ahead and file your application which most people actually do they actually file the complete application so people generally follow direction in life you put a stop sign on a street after there are two people going to stop there and these kinds of thought processes and the suggestion that the veterans are somehow incapable of following these simple changes to the system it's i don't think it's necessarily correct am i correct that ins some circumstances where  that is why that will interview and and fill in the form over the phone or that better that but it that that's available for that purpose yes that's one of the options on the three intend to file at the in the proposed rule making that you know you filled out on line the intent was to really be submission by paper but this mission by phone call and of course to continue with this mission by electronic communication so taking advantage of all of our available technologies the veteran is i think  much better position to communicate and intends to file a claim with the the v a than they used to in fact have to refer you know i don't have to even identify at that stage what's wrong with them they just need to know and i ask you for compensation payment or for a pension or what happens when the counselor on the end of the phone line gets it wrong pleading the form that would be met as applied situation or the rule would this court would or the doctor's court more likely would step in and say you did something wrong on the facts that case and that's true of all of these questions about rover singing comber i mean where in this regulation do resave or walk away from coma i think we read through language in these regulations earlier which talk about you know what the v a is going to do and all that can i ask you just to be clear so we've covered the energy issue we've covered this intent to file and form a claim issue so now you're moving to the what's kind of the third issue which is it as an example of an overall theme but i'm happy to talk about yeah that will could you talk about i'm a little unclear on how the new system compares to the old system in terms of the v a s what you think the v a s obligation is if you file a claim and you're talking about is judge wallach said in his hypothetical you're nice but somehow in the air ingrained in the in the evidence that's presented as some problem with your elbow i think the difference between the new system the old system is zero there is no difference there is no attempt by this regulation to constrain what the v a is required to do under existing regulations if there were you would see instead of the start of the regulations that are listed here that are being modified changes to three of the suggestion is that under rope a summer sums reading someone's reading from some in that circumstance if there's evidence lurking in the record somewhere it's up to the v a to develop that evidence and presumably that would be consumed in the initial in the initial claim itself including the effect of dates and so forth i don't know if that's how you are in agreement that that's what the v a did historically or is required to do historically and or over so beyond that in terms of any other issues of evidence that might be lurking in that we do after we write col a score is recognized numerous times sense is not unlimited and robinson the court warned that we also do not suggest that under the regulations the veteran is entirely relieved of his or her obligation to raise issues in the first instance for the a so to answer your question judge prose she just goes and we identify this i think in some detail in our brief what v a does when they get a claim as they thoroughly examined that claim and tried to figure out what all the permutations of that claim might be to include secondary service connection related claims mr scribe claims whatever the evidence suggests in the development of that claim to v a considers that part of the claim and that's what this regulation continues to uphold frankly by not saying that it doesn't  what what is the i think the genesis of a lot of the discussion about this was a comment in response to some other comment in the v a made in the preamble at thirteen and fourteen in the j a that says along the lines of of course the v a doesn't have responsibility to identify claims that aren't raised now and that's consistent with what we understand i just read in robinson and it's may raj which preceded that which i also read recognize that this is an this is an adversarial system and everyone likes to talk about how that it's you know that the v a has passed to play the v a is different in approaching the claimant's than maybe other agencies or other entities are but as the veterans court i think keenly noted in the engram case that doesn't mean that there's not responsibilities left with the claimant and congress agrees in retaining thirty eight u s c fifty one zero seven which provides ultimate responsibility for the present moment of the claim as well as the submission of the supporting evidence with the claimant not with the v a we have to operate in a universe in which in order for the v a to help the claimant the claimant has to help the v a and what we're doing here is trying to get sperber ask a question of the early stage of the claimant that might cause the claimant to think maybe this is what's wrong with me or if i say it this way we can understand everything better and the ball gets rolling quick of the bus goes down  quicker the claims get flowing faster but it is in a non every one ever serials process both sides coming together to work together like a dance they have to work together and all of you saying here is please help us help you we want you to tell us what's wrong with you during the course of the development of this court has dealt with in previous cases of somebody like at a board hearing where excuse me at a regional office hearing with regional office judges are supposed to ask questions and they've come up and they say hey wait a minute what about this other thing did you ever think about maybe making a claim for that now that's that's required that's we're not talking about you know in this case the authority i mean the development part we're talking all we're talking about here is presentment if you give it to us on this form what's it going to i asked earlier about my understanding which made exactly the distinction that you're making so i guess i want to be sure that i'm understanding it right there is no denial within the regulations or by you standing here today that every bit of evidentiary development that took place before these regulations still took place under the general obligation to develop evidence still has to take place the only question and we can argue i guess about or think about whether this was a change or not is that if you develop evidence about the elbow in a claim that is filed about the knee and the elbow problem is no one connected truly unconnected to to the knee then the v a is saying you could have to file a new claim on that we're not going to give you benefits about the elbow from the effective date of the need claim is that what we're that's talking that's way it used to work is during the development of a claim if a completely separately row lated claim was some suddenly on the stage such that they are always in a position to say wait a minute did you realize you you know have a trap in a room you know that always requires separate claim of them become part of the shoulder claim or the or the p t s d claim well i mean the p t s d in those kinds of things they can sometimes be but but but i think to answer your question yes the old system would have always required a separate claim this is if we want to move over to the n o d stage for second just to answer your question about how the regulations work that you had an exchange with carver at the end about the value of having this two stage appeal process one of the values is that and it's been going on forever when the v a receives and odia after a decision and they do under regulation have the requirement to go through and determine well based upon i don't know d and i going to change my mind i mean the hypothetical always is you were denied benefits because of the icy benefit you know because you couldn't establish you were married an individual some replies with an energy saying you never asked me for my marriage certificate here it is and that that case doesn't get appealed that case the benefits get granted and that's the purpose to clarify obvious errors that are all might have made point out through an argument or the submission of evidence at that stage and there thereby eliminate any need to go further before the border or whatnot it's a very valuable step and i can see a difference from an advocate's perspective in which when he comes into the process that steps already passed and so there's a question about why was the even necessary but from an adjudicator perspective the possibility of ending it early is a very legitimate basis to have a two step approach and there's nothing i heard here today that to suggest that that should be removed but but the idea would be when that comes in and the n o d says yeah i know you did this with my shoulder but you know i also have this neat thing or whatever then we get into this hole at that stage what what happens is it goes back to the r o and the r o has now adjudicate that new issue that's been identified as a separate claim and if it happens later on in the process after a statement the case has been issued regulations plainly provide that any time a new issue is raised it's got to be supplemental statement of the case which then has to go back to preserve this idea of two levels of review before the are all in the board there are lots of measures built into the system to try to help the veteran when an issue may not have been identified initially but then somehow comes up during the process v a is encouraged to help the veteran explore those issues and there are mechanisms by which they are dealt with but all we're saying is that when you get to that point where something's a new claim you just use this form so that we can tell i missed all the other correspondence we get this to claim and while i'm thinking of it you know the process about those those forms and you know d and filling them out remember the regulation plainly says those forms are attached to the final decision so the person gets them there are it right there for them i mean there could be more convenient to say i disagree send it back you know sorry about that side but there was a point about that and so and if the court i mean like i think we asked the judge or judge walk asked earlier whether it was rational to draw the line where we did where we trying to encourage this mission of these things as opposed to just not encouraging him i mean th any reason person i think would say that the system would work i think this is is working and we don't see any statutory basis by which this thing should should fall well based on that and i don't think you've already covered this but judgment mr carpenter made the collabos itself the issue is whether there should be some sort of intent somehow all we're saying here is tell us and as the regulation provides it's like tell us are you appealing or shoulder we're not asking for diagnostic codes i'm not asking for medical opinions it's your shoulder or is it your denial of service connection as that those there's a very broad top level character or as we discussed is it everything that all the v a is in the business of providing claimants benefits they're not in the business of depriving them or making it more difficult but they are in the business here of trying to figure out a way to get people's benefits to them quicker than has been in the past and we think we came up with a really good way to take advantage of basically the advances that have taken place in the last hundred years since some of these old regulations were written and we want to take advantage of them and we are fully confident that the veterans community as a whole is willing to embrace this and frankly already has and we have at the court told me than all right we went way over but when we give you back each three minutes but hopefully you won't need to use them you very much of the question the v a has now conceded that under the new system they must still go through all the informal submissions to come into the building there's no dispute about that just a much smaller number if they hope they argue that the number is smog would be smaller but there is absolutely no evidence in the room making of why that would be the case in fact everything they say about this claim and how easy or they are to use would suggest that any capable applicant who can actually be said that the idea is to in turn make it mandatory to encourage usage and that without that mandate the v a believes that it wouldn't be  however long it takes the v a to respond and then because an informal claim did not establish establish an effective date the vetter will be out a significant amount in better isn't there some time limit in the regulations with respect to how quickly the  do in this case that is part of the problem and even if there weren't a time limitation and i'm pretty confident there isn't such a limitation the problem is that their entire amount that entire period of benefits would be lost that this already have every incentive to use this new form so we're talking about is what to do with folks who fall through the cracks and can our be expected to use this forms whether because they're elderly disabled that p t s d their production homeless their predicament are unique and they're saying they're on their own we are saying you know they're effective date as they has been the case for the last eighty years should be fixed according to the intent of the application and when the after that first manifest th the efficiency of the appeal process and the veterans due process rights those are the words in there so that that answers i believe your question is not up to the secretary to decide his efficiency is more important than a certain right it is congress and congress has set that in the process seventy one zero five which again is just so so rational basis says no bearing on the i hesitate to say rational when we're talking about the v process i refer you to to the courts own own language of who sets the balance the balance here we've heard about and hasn't been changed in the balance has been changed if you do not put an issue decisions i struggle with those i can't expect a veteran to do anything else mr hockey's mentioned they've all they've done in so you want to five years fill a gap what's the gap there is no gap is explicit and o t statement of the case that explains the issues that must address each issue it says he just then the veteran if this negotiation is working out does not work gets to pick and must identif the issues to appeal where's the gap i have also not heard any response to all of ours argument about the factual basis these forms are supposed to be to improve the process which we hope they do regardless of the form they come out but there is no evidence that they do and indeed all we've heard is well we're going to try and see what they do and then we're going to send them back where's that where's the evidence the only evidence is in the board's records and the history over twenty and thirty years not some truncated little pilot test that at a facility where they found they were cooking the books and i was a nuclear can i speak can i ask you a attention the absence and criticize said absence of a all box or something substantively equivalent to what i just asked week that veterans justice group criticised the need for specificity and that we pointed out that under the old rules within current rules all you had to say was we want to appeal them all we want to work it's a notice we argued the no issue has been argued many many times before your court as well as below about what you know to us but we did specifically in our comments to the to the rule making and i believe  u have them with me but we didn't in my in the veterans justice group initial comments to raise the issue of the specificity if i won one last point or do i want to finish the sentence i was and i was a nuclear sailor get it wrong ninety percent of the time i think that the army and the air forces in similar sadistical groupings we have to look at the practical aspects of this rulemaking and again if the forms are meant to increase in fish in sea it needs not generate more inefficiency than that and we don't know what it will be but i would apply that rule to the best it can thank you very much i'd like to start with mr hockey's last comment about all the better needs to do is to say on the form i disagree with all due respect to my colleague mr hockey there is no place on the ph farm that says i disagree the other thing that the v a did not do was to respond as they did not in their rule making as or explain why this form is mandatory why must every veteran use this form why can't a veteran continue as they have for more than sixty years the simply expressed in writing a desire to appeal and a disagreement with the decision made by the v a i'd like to also talk to the court about the  reference made by mr hockey to the robinson decision it's important for this court to recognize that the robinson decision had nothing to do with issues of benefit in the notice of disagreement the reason for that is that issues were never required to be  decision of the veterans court so the reliance upon robinson is not appropriate in this rulemaking case additionally the government's reliance upon to laos is not appropriate to laos was a case that said that there was ambiguity in the statute because the statute does not define a notice of disagreement the definition of a notice of disagreement has nothing to do with this rule making this rule making is about the mandatory use of a form that is not required by the plain language of the statute nothing in the statute requires that a form be filed all that is required by the statute is that the be put on notice that the veteran has a disagreement with the decision which gets me back to the point of why it is important for the v a to define what they mean there is nothing in this regulation that defines an issue there is no other v a regulation that defines what an issue is how is a veteran or event fringe representative supposed to complete this form without some idea as to what is meant when it says on the form under ten o'clock ten a specific issue of disagreement block b is area of disagreement neither of those terms are defined there is a listing under the b section with an all encompassing other as the fourth option but says other place specif i'm sorry yes it does it's say please specify that it is the position of nova that this court should reject the rule making as overreaching and as not consistent with the plain language of seventy one of lester's for the questions from the court thank you very much your i q we think of counsel in the case