that rendered the decision final and accordingly because the october ninth in ninety nine states had been previously considered that the provisions of thirty eight c f r three point one five six b were not required to be discussed by the board and the true that the v a has already considered whether the medical evidence submitted in connection with mr hampton april two thousand and mission would justify or hire a rating as far back as his original claim it's already considered i'm jumping to the ending thank you i agree with you that barnes says it was improper for them not to treat this as part of the original claim but all that does is get you a review of whether with this additional evidence the original claim was substantiated that the date it wants and if he has already made a separate finding on exactly that point so i don't see this error here like because there's a second submission that took place and that second submission was what produced the july two thousand decision which is the decision which the notice of disagreement was filed with this case and resulted in ultimately a rating a total rating back to february of two thousand because of the first submission of new material evidence it received a temporary tolerating from a nine hundred ninety nine to june thirty nine nine hundred ninety nine which then leaves a window if you will from june thirty nine hundred ninety nine until february two thousand it is based upon that second submission and the resulting new and material evidence in that window that negated the necessity to actually considering all of the evidence and decided there was no right of entitlement back to the very time period that you're asking for though i don't i don't understand the point of this appeal well i respectfully disagree that the board did that in fact i believe that the board only considered an effective date to the date currently assigned and did not consider the effective date early the precise purpose of our appeal to the court was suppose that the board were to consider and let's there are several different pieces of evidence floating around here but let's let's just take the hospitalisation period that's this one of your contentions is that that is evidence that they should have it's the consideration of all of this evidence once they decided that he was entitle to a one hundred percent rating what they did in the board decision was to treat this as though it were an effective date issue as opposed to treat this as it was part and parcel of his original main one nine hundred ninety nine but one i suppose and here's my question suppose that the board said sure you know we've just read the bond the session and we've concluded that we have to consider it as part and parcel of the of the overall claim nonetheless the evidence itself does not show that he was one hundred percent all the way back to the date of his original claim but instead it shows that at some point during the pendency of the claim he shot up to one hundred percent and then maybe came down or maybe he didn't come down that in any event he doesn't go all the way back to the beginning is it your legal theory that notwithstanding their conclusion that  comes in here because it's not really about consideration of a one hundred percent rating obviously that's what he walks right but it's consideration of a rating more than the initial rating that he received which was thirty percent right but so does that new material evidence justify a rating in this case of fifty seventy or a one hundred percent rating in that window but if the board were to say we don't we've looked at that evan is and we don't think it justifies the conclusion that he was more than thirty percent disabled during that window period would you have a case i do not believe so because that would have correctly applied three point one five six b because three point one five six b contemplates that this will be a pending claim and that there is no need as the veterans court erroneous lee concluded here to file a notice of disagreement when you submit c quencher leave new immaterial evidence until there is a final decision the final decision in this case which of course did not become final because he filed a notice of disagreement was his july two thousand reading decision there were really three raving decisions september one thousand nine hundred nine the original decision which was signed thirty percent the february two thousand decision which assigned a temporary total rating and then the july two thousand yes july two thousand decision we've partially increased the rating from thirty to fifty and agreed that part of this evidence justified a rating more than thirty percent but it is the consideration between fifty and one hundred that was never properly considered by the v a because they treated this as an effective date claim based upon a new claim just as the veterans court should rushing mainly factual issues and not legal issues actually not your honor big big trouble boy because this is a question of law as to whether or not three point one five six c make claim pending and therefore part of the original adjudication of the rating to be assigned as opposed to a new claim that then it is decided on the basis of what the  is to be a sign for the eventual one hundred percent that was granted this is not an effective they issue this is a legal issue about the pendency under the plain language of three point one five six b that three point one five six b creates a circumstance that as you make additional submissions after the original decision that that claim remains pending until the final decision on those admissions is made and then the one year period expires that one year period did not expire because after july of two thousand he filed a timely notice of this agreement but because the v a treated this as an effective date issue they dealt with this only in the lookback and not as part of the look forward period for a rating ultimately more than fifty percent between july thirty thousand nine hundred ninety nine and february of two thousand to make sure i understand your argument and you may i think you may have gone over t i just want to be part i have to clear my head so you acknowledge that the board held on page one fifteen of the appendix this quote what is considered may ninety nine and you ninety nine hospitalization records in light of all the evidence of record h treated it properly like we said they have to involved as a continuation of the original claim as opposed to a request for an increase a whole new claim that they would have had to make more particular fact findings that are different there's not enough to say he's not in total hundred that p had anywhere in the range from thirty to one hundred he could have got that's correct that's your that's my argument because the nature of three point one five six b is to regulatory really create a pending claim that if you make submissions after the original decision is made within the appeal period then those submissions extend the period for the filing of a notice of the screen you agree the board's already made a fact finding that he wasn't entitled to one hundred per one hundred percent that would be correct but that is not the issue in a pending claim although that is part and parcel of the consideration and i believe your honor i need to correct the record that i misspoke to you initially because of the interim decision of seventy would have implicated extra scheduler for entitlement to a total rating based upon employee ability and that's why treating this as a pending claim becomes a question of law and not a question of fact because that's critical good morning it may please the court alex on to us a bit united states mr happens appeal fails for three reasons first the court lacks restriction to entertain a subpoena and because the veterans court did not interpret section three point one five six b second even assuming there is an if the secretary receives a submission the secretary must view that submission through the prism of new material evidence and consider that under three point one five six b and that's exactly what happened in this case there are two submissions in this case hundred nine and one of april of two thousand now this is the record is very clear that the secretary looked at both of these submissions and this would be consistent with lot the october ninety nine submission was determined to be new and material evidence in fact it's not even disputed in this case mr hampton's brief pages four eight and eleven all recognize that the secretary received no material evidence it was considered and the any duty under bond or three point one five six b was discharged with respect to the april submission in the factual development caused by the evil submission the board expressly found that that was not new material evidence and so consistent with bon  it's really in the middle paragraph on one sixteen right you know the weight is not new in the terry eleven it's that's what you're relying on that's right and so this is exactly what the veterans court and the secretary and more to the point need to be doing under the court's decision and beyond what we have here is that express consideration that this court from lacking in bond and so i think this case is materially different from want and th also illustrates that really what we're talking about here is a straightforward you know if we go to the merits argument three point one five six feet was simply not misinterpreted it was not misapplied and i guess you know i i think it's just something that the court is going to have to take a look at but it seems pretty clear we have a statement that this stuff was considered at the october ninety ninth submission and that that was that actually recent because mr hampton to receive additional benefits so that is not in dispute and for the later submission in april two thousand that was determined to be not new material evidence in by three point one five six b s very terms that sat in that is satisfied that something is not new material evidence three point one five record this is there for it is not new material evidence that's just talking about the no psychology no it's not discussing all of the evidence well i would be doing this one piece it's not new material i recognise that and i would disagree finding that you're relying on and do everything it should under bond i e decide whether it's you know all the stuff that it was no material i think i disagree with that and this is why the corneas to remember the context of this decision this is a the the board five two thousand treatment now so it makes perfect sense for the board to be focusing on what happened before because that's the only fight the only question is if he's entitled something earlier than that and so i think this is perfectly consistent with bond and it's perfectly consistent with the beneficence scheme of benefits and secretary trying to award benefits as soon as it's factually ascertainable pursuant to fifty one and the two that mr and mr hampton's increase in obtaining some materials and that's what we're talking about here with respect to the new material evidence claim with respect to the april two thousand and those materials and correct me if i'm wrong because it wasn't entirely clear to me from the brief that those materials i take it or the materials found at twenty five through thirty four i joined appendix those are two items one a link the item that you have referred to i think is the treatment of the two items and there were only two well it's always there anyway we look at if you look at page twenty six there's a sort of a long tally of records from different dates and so we see is that on page if if i were to look in the file and say what was it that the board was looking at in connection with the april two thousand i would find these two documents correct that's correct and nothing more i think that well know that they were looking at additional materials we had things like the may hospitalization records from may ninety nine and right but when i say that this is all they were looking at with specific reference to the april where i'm trying to go with is i'm trying to figure out the significance of what the board said it one fifteen one sixteen were they talking about only one of a large number of of documents are that were they talking about one of two documents have before them with respect to april two thousand setting aside the hospitalization that came up in october of ninety nine and so right and it would be we would be talking about march two thousand again this is the next sentence on one sixteen march two thousand there was record one corpus but they're very different records obviously a february twenty second psychology note as of february twenty second psychology ok so it's not but it's not everything on those pages from twenty six to thirty three what's not everything it is the earliest document again we're looking at the board is looking for a way to try to get an earlier effect that's what mr hampton wanted at this time and so what we have is a situation where the board is saying you know even if we went back to february twenty second two these documents is new and material evidence and establishes that i was much more than thirty percent within fifty percent disabled at that point that's the that would be pertinent i'd seventy percent that would be pertinent to his argument right i would agree that that would be pertinent to his argument i disagree that the record reflects that the board didn't consider those where you disagree that they did that the record reflects they didn't consider it is there anything to indicate that they did with respect to an issue other than effective well no i think that i think that the focus is again we have to go back to you know we're not talking about what arguments are being raised later on we're talking about what the board was charged with doing at the time and what arguments mr hampton was making to the board and the issue before the board in two thousand and seven after remounting the veterans or was whether mr hampton was entitled to an effective date earlier than february twenty second two thousand that was the inquiry that was the question before the board or the one hundred percent disability r but for the one hundred percent disability what if he was entitled to an earlier date for something less than one hundred i think that would necessarily be super soon and in the one hundred percent effective day i mean that why would mr hampton want to mr hamill is going for the most benefits possible that's understandable i think it doesn't make much sense that he would be looking for something less than one hundred percent if he was being considered for one hundred percent mr kept current argument as i understood it was the board said he wasn't entitled to one hundred percent but they actually didn't address whether he might be entitle to something less than that because they were focused on effective date as opposed to benefit in title meant which they would have done if they treated this is an original part of the original claim as opposed to a request frankly i think that it also ignores the fact that you know there's a progression here in the timeline and the board's original decision in may of two thousand and two i think i think is critical and that's that is thousand and i guess i was i would just say one other point with respect to if the court did find error i think the court raised this before but we certainly agree that the consideration that was required was accomplished in this case if there was a remained it's just totally unclear as to what the secretary would have to do differently and why that why remember it make any sense in this case is beyond us because the secretary's looked at the same evidence that the secretary would look at if this court order rematch and i just think that any argument that there was a prejudicial error here is really waived i mean certainly we raised that in our response brief mr carpenter didn't reply and make any or any argument in response in the reply so to the extent that there's a prejudicial argument that's being made for the first time during oral argument i think that's a little unfair but even at looking at the merits there's simply no prejudicial air even if the court finds that there was a misinterpretation of three point one five six b because the secretary considered mr happens and please court the v a simply misunderstands both this appeal and mr hampton's they say that the only issue is effective date that is not the issue that is not the issue w mr hampton presented the issue that mr hampton appealed was the initial rating assigned his service connected disability and that's what he appealed the v a and the board converted this into an issue of  percent proposed dramatic stress disorder and that is simply not the issue and the government gets up here and misrepresents that that is the only issue and that is the clear evidence that the board misinterpreted three point one five six b because the issue is not affected date the issue is entitle me to a rating more than fifty percent from june thirty one thousand nine hundred nine until february two thousand that's the issue he didn't get that h by the board because the board addressed this as an effective date and there is no concession on the part of mr hampton that three point one five six b was correctly applied it was not correctly applied by the veterans court because the veterans court said that he had to have filed a notice of disagreement with the feb two thousand board decision that is a misinterpretation of three point one five six b the provision to three point one five b negate the necessity to file a notice of disagreement on till the new submissions have been considered and designed when they were it doesn't seem though that the that the notice of disagreement on that statement that had w say what it was while actually complained about the power rating just simply said that he needed a new rating that that's correct your honor but that this was an economy which he was not represented by coun and that that time the veteran was simply trying to express disagreement which is all that's required under seventy want to follow when the matter was perfected on appeal with the v a nine the issue was narrowed because by that time they had acknowledged that his initial reading should not have been thirty but should have been fifty you know when i read the note and i read it and in the light most favorable to mr hampton i just simply can't see that he's sta any type of disagreement to the prior i waited and he was simply saying i'm i'm getting or i need a new rating is that sufficient under under the regulation as a notice of disagreement yes required under seventy one five expression of disagreement and under the b a s regulation he must also express an impediment to administrative appellate review he when the notice a disagreement was filed with  in the interim in the july two thousand decision the v a had granted they increased from thirty to fifty following the discharge from the period of hospitalization they reduced it back down to thir twenty second for a total schedule rating for p t s d the joint motion for remain and i assume at this point in time you were involved in this case or an attorney was and this is a joint motion for remain where you jointly with the government sta that this was part and parcel of the same claim when the court decided rice the court below decided rice in two thousand and nine they recognize that as you raise issues during the course of your appeal and as new material evidence comes in that is all part and parcel of the same claim the original claim in this case the main one nine hundred ninety nine cler in point of fact we were bound to vacate the decision that was made by the board the board was the one that mis framed the issue i have no control over how the board frames the issue we framed the issue in the substandard appeal which i was just looking at at the joint appendix in  at page sixty five and there we did frame the argument as earlier effective day but what we've learned since december of two thousand and three from the rice case the rice case teaches that when you com claim that claim continues to be the claim for the initial rating assigned when the initial rating assigned is not the maximum benefit available by law well so if you are correct that as this progressed through initially even with the initial notice of this agreement and with that assistance of counsel the the issue got mrs frankland but under the correct interpretation of three point one five six b when the v a amended its regulation it changed the label it change the header to three point one five six b to refer to pending claim the pending claim here is the main one nine hundred ninety nine the original plan yesterday rises well i was it really just going to follow up on judge mo s question regarding the joint motion for remain and so it does appear that that motion directs at the agreement of the parties directs the board to where that where then is that the preserved ever hear well the error is the error that you have preserved well the error is the misinterpretation of three point one five six b by the better in court which said b because he didn't file a timely notice of disagreement that you since but since the board did what you asked them to do i don't know why that becomes a particularly telling point in the case it is because because the issue that was presented to the betterment was whether or not the board had when they reconsidered it on remain and it's a whole new adjudication they rea decide the question that is before them and they are required by statute to apply all the political provisions of law and regulation three point one five six b was in a political provision of law and regulation we argued below that they didn't apply the veterans court said that we weren't allowed to rely upon that because we didn't file a timely notice of disagreement that was an error of law that relied upon a misinterpretation of three point one by six ok thank you very much ron thank you mr carpenter