deals with whether or not the veterans court misinterpreted the provisions of thirty eight c f r three point one five six c which deals with the assignment of an effective date based upon receipt of service department records following an original decision and  no your honor i believe that's a legal issue because they incorrectly determined that the disposition of the application of three point one five six e or the outcome was dependent upon whether or not there was a diagnosis of p that is not what triggers the application of three point one five six see what triggers the application of three point one five six see is the v a s receipt of service department records and then a later reliance upon those records in the reopening well both but you can't get a q determination without the diagnosis right but you get under three point one five six c is a retroactive i'm on your way sion of whether or not he did or didn't what the court was doing was prejudging the outcome of that retrospective evaluation what is required under three point one five six c is for the court scuse me for the v a to retroactively determine whether or not what in fact existed at the time of his original claim until the time of the successful reopening was or was not post traumatic stress disorder that's the function of five six c and that was the function that was denied by the misinterpretation by the veterans court the veterans court relied upon the notion that the court could somehow prejudge the outcome based upon its conclusion that there was no diagnosis earlier post traumatic stress disorder that's not the way the three point one five six c operates it says that you will excuse me the v a will reconsider the original claim by way means of a retroactive evaluation to determine whether or not what in fact existed was or was not the condition that he was ultimately service connected for and the record in this case clearly demonstrates that initially they said his condition was schizophrenia and not post traumatic stress disorder and they got a board of two examiners to make that determination later they determined what he had was of traumatic stress disorder mr hunter was with it to determine the determination to just refer it was that the time the the service records war there is in the records and referred to they were does does that but the decision in nine hundred eighty eight is not a determination on this particular claim no your honor because if until there is a grant a subsequent grant an award the provisions a three point one five six c do not come into play they trigger when those records were not originally received and they were not originally received in one nine hundred seventy six then later on they were received they were considered and they were rejected but in one thousand nine hundred eighty eight they determined that in fact based upon these records four the d a expressly says the medical records establish a clear diagnosis due to stressful events experienced by mr cole while assigned to a riverboat unit in vietnam and review of navy were relied on and discussed in the nineteenth id no no not at all your honor because under three point one five six c it's received any time after the original decision was made so even if you six that fact triggers that or implied implicates the provisions of three point one five six e and you must apply if when there is a later grant because it is the later grant which is what occurred in one thing ninety eight which requires the v a to reconsider its original decision and they would be read as part of the parcel of that original decision the one thousand nine hundred eight decision to determine whether that one nine hundred eighty eight decision was or was not not correctly decided on the merits but correctly determined whether he did or didn't have post traumatic stress disorder the whole function of three point one five six cs to give the veteran the benefit of the administrative deficiency in failing to get those records in the first instance later getting those records and ultimately then being awarded benefits for the disability that he was seeking compensation for which is precisely what happened here and as a consequence he was entitled to the benefit of three point one five sixty because there would have been a manifestly different outcome because mr carpenter wasn't the real material factor the change in diagnosis and nine hundred ninety two and this the records that you're referring to really have little effect on the the change and and that is where the error was made by the veterans for your honor because it's not the materiality or the basis for the reopening that dictates whether the three point one five six c is to be a plot what dictates whether three point one five six c is to be applied is whether or not there was a later receipt and a subsequent grant and both of those prerequisites are met by this record that therefore there is no the conditions for q don't exist that's correct your honor that's precisely what they did and that's precisely what the error is the error is making this the operation of this evidence flynn and that's why the the materiality requirement is significant no it's not your honor because the v a has admitted when they amended three point one five six see that the use of that term was confusing because they didn't really mean materiality because materiality arises under fifty one zero eight under the statute for reopening that determination is under three point one five six eight that in fact that regulation didn't exist in nineteen ninety eight or to me it did in one nine hundred ninety eight it didn't exist before traditional review because there was no requirement for new in the burial evidence to reopen until fifty want to wait was put into play other than seventy one zero four the fact is is that the definition in three point one five six a does not control the outcome under three point one five six c and the v a s own published interpretation of the meaning of that and that it was their practice that the eight describe specifically that prior to the amendment it was their practice upon receipt of these records to reconsider the original he praises to this court in his appeal to the board to the board mr cole raised the issue that the receipt of the service records was due in material evidence under the version of three point one five six c that existed in one nine hundred ninety seven that required that service department records be new and material evidence in his appeal to the veterans court and in his appeal to this court mr cole raised a new ground which is that the version of three point one five six c and that existed at the time of the original office decision in january of one nine hundred ninety eight that said when new and material evidence consists of service department records really didn't mean that the service department records had to be new or material put aside the way the question from all and let's assume that the new material evidence language was just a clarification the only thing that would have changed is the receipt of be the date of the in service stress or the in service event that feeling the could potentially could have changed as a result of the receipt of the service department records but those are already in the  medical diagnosis of p t s d therefore even honest even if mr coles interpretation of the regulation were correct under the facts of this case the date in title  the later date it's the date of his diagnosis of his hospitalization you've got to have a diagnosis in addition to the stress yes and that doesn't change whatever effective date one gives to the receipt of the service department records furthermore as the veterans court explained in its decision mr cole playing for seaweeds refuted by the plain language of three point one five six c as it existed at the time of the regional offices decision because at the time of regional office the decision that version of three point one five six he said that when the new and material evidence consists of service department records  court decision went through in some detail showing why they weren't new material evidence and that's not something that would be part of this court's appeal here because that's not the issue mr cole raised  moreover in the case where you have the service department records put on at an early point here we have a control because we have the board's earlier decision in one thousand eighty eight we have we can see what happens when in this case you have the service department records and you also have a diagnosis of paranoid schizophrenia and the board still came out concluding that there was no service connection for p with respect mr harper also stated that there would be need for a retroactive evaluation of the diagnosis as a result of regulation under thirty eight c f r twenty point one require that the records be new and material evidence and the not only do the veterans court conclude that they are not new material but for the court to find in favor mr cole would have to find the regulation doesn't have the same effective date for the diagnosis under this case turns on the meaning of the regulation the regulation provides for a retroactive evaluation the v a says that that retroactive evaluation can apply to the question of what was the nature of the disability this benefit has been granted all that it is issue is what is the effective date for that a war and the v a is correct it is about the date that entitlement arose and entitlement can arise based upon a retrospective about your way sion that says now that we've established that what the veteran suffers from is post traumatic stress disorder and reconsideration of the original claim and looking at these records we can conclude that he is entitled to compensation back to the date of the original claim or they conclude conclude at some time along that timeline that that was the time which the basis for q here is a failure to correctly apply and the for the better in the benefit of three point one five six c and three point one five six c expressly addresses the circumstances of a change in the language of the regulation for a retroactive evaluation why else would you do a retroactive evaluation most importantly what the d a said when it published it amendment the three point one five six c is that the purpose of this regulation was to prevent the veteran from being harmed this veteran was harmed by the fact that his records were not there if these records had been obtained in one thousand nine hundred ninety six that he doesn't get the benefit of three point one five sixty but those records were not there in seventy six maybe they were there in one thousand nine hundred eighty but they were clearly there in one nine hundred ninety s and most important he has been awarded the benefit now under the v a s own published interpretation of this regulation and they are here to correct that harm by giving him a retrospect