we have five cases the calendar this morning five six seat as a preliminary matter i think we need to start with the understanding that subsection a of that regulation permits a finally you do dictated the nile benefits to be reopened based upon new material evidence of the newer material evidence was the examination for right and he got the benefit of the two thousand da is the date that the request to reopen was made that's why he got two thousand two thousand and four that's right but it is our position that subsection c comes into play when that we'll can claim grant service connection based in whole or in part on service department records that were available to the be a decision makers in the prior duty cation that denied benefits even if they were a yes and the reason that i say that is that the there are three basic reasons why i would come with him in that the primary dispute between the parties is that we say that the language of the create two thousand and six version of three point one five six that talks about whether the service department records will receive before or after a final decision right well and in our position is in this particular case the records of service department records in question that became part of the reason that his claim was granted upon reopening they were discussed extensively in the r r decision and found to be insufficient or you could challenge that key grounds later but that's not what's involved here so what what why should a leader reopening  based on those records a result of an earlier affect it because the product of two is not available here because our position is different one five six is a remedial provision that says that in certain circumstances where the reopen claim has been granted based on or all on the service department records which it was here is there are certain circumstances where they are entitled to that it is appropriate to have an effect if they think goes back to the da literally speaking the service department records that are received by the r before the decision are literally service department records received before the decision has become final they also are literally new evidence which is to find that evidence that has not previously been submitted to just be a decision makers if that were the only reason that would not be a very strong case but the second reason is the comparison of the language of the pre two thousand and six version with the post two thousand and six version the post two thousand and six version specifies that the earlier fact they provisions come to effect when the service department reference or received after any decision now the secretary takes the position that service department records received before or after the decision becomes final means the same thing as after received after any be a decision and i submit that difference between the date of the decision the date the decision becomes final yes the report something unique on the evidence that is submitted after the decision but before or after the decision to come here is the crux of the let me make sure i'm either am i right so far yes ok but i still think that in terms of the remedial aspect of the promise of three point one five six it doesn't matter whether the records are received before the aral decision well good or well and then the question is why are they new and material evidence i mean it seems to me your argument has to be that new and material evidence as used in the old version of one five six he means something different from what it means and one five six eight because otherwise evidence that comes in before the decision isn't  i think we all can agree that well yes well i think that it does i think that is the that's what it does it is different in ok so so that's the crux of your argument isn't really that at the heart of the earth the beginning terms of one five six old version reference to new and material evidence it really means something different from what it means well i mean if you to take those the exact definition of new material or new evidence in subsection  further than that and that's why i think the crux of my argument actually is the remedial aspect of this decision and this is reminiscent of the problem that you pointed out just a stake in you concurr opinion in cook the principal the where the question was whether or not a failure in the duty to assist could form the basis for a jew clay and the court decided that it could not because you were relying on evidence that was not obtained that you don't know whether or not it would have definitely changed the outcome and it was not of evidence of record here this is essential e reminiscent decision in the ordinary course and then there are service records that are received in a supplemental report the service records that were there originally before the decision can't be the basis for that is correct because when you will view the federal register that publication that's trying to describe the reason why they made the changes from in two thousand and six one of the things that the said in that  is that we don't require a supplemental report they are talking in that business so i have to be a supplemental report if it's you know new service department records that come into play i think i'm not understanding what you're saying  saying that any service records that were available before the decision become subject to the possibility of retroactive what i'm saying is that the if a claim is real different for any reason on the basis of any evidence if there were service department records that were available to the  a in the original decision stream that denied benefits and those records subsequently played a part in granting benefits in the reopened claim then subject of subsection c is triggered whether they're taken as a supplement or not that's correct and i think that if we look at the facts of this particular situation it might explain more clearly what our position is here it's almost the opposite of the situation where they deny the claims and then later on service department records can and were reopened and the claim was reopened and based upon those service department one and he told them they thought it related back to the treatment that he received in service in one thousand nine hundred ninety four the regional office made a request for those records and scheduled an examination for him they got the records they cancelled the examination now the examination is something that would have determined or could have determined whether or not the condition that he suffered had a nexus to the condition that he suffered and was that show the treatment and service this time they had an examination they diagnosed him with that or schizophrenia but there was no indication that the examiner was asked or that he gave any indication as to whether or not there was a nexus between that present condition and the in service condition that he was treated for it wasn't until two decades later that his claim was reopened again this time they asked the examiner tells what his current condition is tell us whether or not it's related to her has a nexus with what he was treated for in one thousand nine hundred seventy four and whether that condition  yes the in service condition triggered his schizophrenia he suffered that schizophrenia on departure from the service and it is related to the present chronic chronic psychotic schizophrenia that he has now and he does not have acute clay and to say that he should have  ninety two years of veterans are represented suffering from schizophrenia the fault shouldn't rely on him the father should be on the reading official who had a duty to fully develop the claim even in one nine hundred eighty one by reopening of the decision on reopening the right lane is based in part on service records then you go all the way back to the initial claim yes but actually under the would change since almost all cases involve in part reliance on service records at that happened in virtually every case it seems to me or at least a large number of them that seems to me would become implications of your argument  i'm not sure that it is implicated therefore it is a broad implication but there may be some real openings that a granted that aren't based upon the service department renders none of what you said if the decision yet ultimately that's made on  realigning is based in any degree right on service records which are i mean you've got to make a decision which is based on a number of factors some of which are going to be presumably service records in most all cases when you agree it may be in most cases but it may not be in all cases no yes it is i suppose that's right but it seems to me what you're doing is you're making one fifty six c at least the old version applicable in you know a large majority of cases as opposed to being an exception case the records were before the secretary the regional office when they made their initial decision in one nine hundred eighty want and then when they reopened and regions and really looked at mr benjamin's claim in one thousand nine hundred eighty two so the records were clearly considered and three point one five c based on the plain language and the veterans court sorry to be a consistent or petition which is entitled controlling weight does not apply to records that were available to time the original decision language clearly sees me clearly stated even in the two thousand and five years and that the records had to be submitted before or after the decision has become final so it seems that there's already a decision before those records come in to the extent that mr benjamin claims that did change to the regulation in two thousand and six um how establishes that his interpretation of the teeth out the earlier version correct he is he is ignoring the legislative history or the regulatory history of that new regulation the proposed rule clearly states that the part that the purpose of the old regulation was to help veterans when the desert the v a receives records are unavailable at the time the da previously decided to claim for benefits and those records lead to an award a benefit that was  not granted but the previous decision it could not be clear that the a position on that issue was discussed in the veterans court mayhew decision and then the major decision cites a vigil the peak another veteran court decision where the veterans court held that to the interpretation of the new three point one five fifty and the over three point one five to the are identical so there's absolutely no basis upon which to argue that german might have a point though it might be difficult to reconcile with the language of the regulation where you have a supplemental report which comes shortly before the oro decision and the veteran doesn't have a receipt of a supplemental report i don't know how much argument on the part of the veteran actually takes place before in our decision for this issue but there is the presumption of regularity and the presumption that all records are considered when that when the v a issues its decision the court made that clear and then but i don't i'm not really addressing the question of whether the paro decision consider the records i'm assuming that they did but the problem is because of the late supplemental report that the veteran hasn't had the opportunity to address what's in the supplemental report before the decision is rendered i i don't that obviously is not the case here because mister to assume that if the v a thought that claimant required more time to respond they would give him more time there's no indication here that mr benjamin attempted to you know i contacted the a or make some sort of comment about the record before they were considered the regulations have to draw a line somewhere if you disagreed you also could have filed an appeal this or i just i just like t administration is not compensable because it's considered to have been a contract or a problem before the person enters into service it was not until two thousand and four when a new medical examination was conducted that the doctor concluded that the type of schizophrenia mr benjamin had was service connected and related to a nervous condition and then find records nine hundred seventy four so what do you understand the terms supplemental report it seems like a simple enough term but now i'm beginning to wonder if i'm not right and the assumption is as to well that's the terminal that that is one thing that is slightly different in the new regulation it was when the new regulation was adopted the a want to make sure that supplemental report which i think used to be sort of a term of art was not t away back to the initial claim that's correct i mean right now for me because you're saying supplemental report is that a defined narrow category of of second reports where normally you only rely on first in the report originally sensually to claim he will get an earlier effective date regarding without having to meet the the more arduous standards for two showing that there was an error and that that is the avenue that the pair of able to mr benjamin here let's not now i know but you would ask you i know of an if so that was the quote i know that there was a question in that case of whether or not the time frame with correct and i know that the records were considered i project but that's the only one i'm aware of it came out about a month person referring to new and material evidence submitted before a decision has become final section three point one five six see plainly referred to as a submitted after the decision was made meaning the r o decision but before the decision became  the passage of the one year or the final disposition of the appeal my question is what's the difference between if if the records were received before before the r o decision and they didn't develop the claim as they should have at that point and the record being received before the board she just decision wherein the board still had the same duty to develop their help develop the record and i would also point out that in cook in response to your concerns about you not me claim the secretary pointed to three point one five six as a possible remedy for veteran or decision or the decision in the case become final where there is an appeal to the board is it is there a period of time after the board decision during which an appeal can be taken as the a p c s and it becomes final if that period expires