misinterpreted the provisions of thirty eight c f r three point one five six b when it relied upon its own precedent in the ross case in the ross case three point one five six b was not at issue three point one ten three point three one ten was at issue as it is in this case however the decision and ross was it the reliance by the veterans court was misplaced because the only that related to effective date was the statutory provision three point one five six b is a regulatory provision that requires the v a to take specific action this court has on multiple occasions in front the problem is that the the one year appeal period following an original decision and then during the pendency of an appeal elling to did not address that issue in ellington the court was confronted with whether or not three point if the secondary service connection is a separate claims ellington's says yes isn't that the future or in the context of ellington it was a separate claim because there was no direct involvement of other claims pending which is what three point one five six b covers three point one five six b specifically addresses the required analysis when the v a receives new and material evidence there should be a required examination under the provisions of three point one five six b because the v a received new material evidence specifically whether or not there were additional disabilities resulting from ms manson areas of service connected bilateral ankle condition that was part and parcel of the claim for increase because placing at issue the question of whether or not there was additional disability could have resulted in i don't see that we did additional compensation or mismanagement is said about it being part and parcel of the claim for an increase yes if you get a secondary service condition clane don't you get a separate rating it doesn't increase the other claims rating does it well the plain language o three point three one zero says that it will be rated as part of the process that the v a adopts in fact is to rate that additional disability separately but the but it is an increase draw no big no i mean you get more compensation oakton doing this a long time a claim for an increase is you have a disability and you have a rating and you think it's a worsened and you want an increase correct but if it's not if you get another claim granted whether it's secondary or were not secondary and that increases your overall rating that's not a claim for increase that's a claim it's a new claim with a new rating is a no no it's not your  honor it's a separate issue just like the issue of extra schedule or total rating is an additional issue that must be dealt with when the facts are presented during the course of the appeal of the scheduler rating ms man and within a year i say i have this other completely different issue with my hearing and i'm going to file it out and try to get the date back to the end goal even though other not secondarily connected wouldn't your argument that this is the claim for increase still in both three point one five six under under your thirty no your honor because you keep increasing the overall disability however because the precise language of three point one five six b that has been pathetic will because they are not related what is required by three point one five six b has been repeatedly affirmed by this court is that it is a required analysis because the v a has received during the pendency of either the appeal window the one year following the original decision or during the pendency of the appeal that during that time the v a receives new material evidence and then is required to perform a specific assessment and consequence the only consequence then would be the retroactivity of the increase in compensation that's correct and whether or not it would relate to the request for increased compensation for in this case her ankle bilateral ankle conditions as related to the secondary disability which the v a found that they found was a separate claim that was independent of and they in fact made an adverse finding by making that without doing the required assessment point one five six b says it says it will be considered as having been followed in connection with the claim which was pending at the beginning of the appeal hearing that's correct if there are two separate claims in the secondary service connection wasn't pending then it doesn't relate ellington because they were clearly distinguishable in time these actions are not clearly distinguishable in time and implicate the prophetic provisions of three point one five six b because of where they were present did in the process as the veterans court found in rights it is inextricably part and parcel of the same process to deal with both scheduler and extra schedule or why because they relate to the overall compensation when the issue of extra scheduler is raised which can be raised as a separate claim it's raised during that process it is a different analysis that is mandated by the v a regulations we should be interpreted in this regulation this court should be interpreted in this regulation as the liberal regulation that it is for the benefit of veterans all we're talking about here is a year or a year and a half worth of additional affected date for a condition that the v a has conceded is related to the very disability that she was seeking additional compensation for so it is in the context we cannot simply rely upon ellington in which the facts are clearly distinguishable that the claim for secondary is a separate point and i'm sorry to choose i forgot your question well it's a separate claim because it's related separately even i think what you're asking for under this process you're still going to get liberating for the engle and you're going to get a separate rating for whatever the secondary condition it is you're not going to get an increase in the ankle the rights panel recognized the lack of imprecision that is used and when we talk about claims that claim here was for additional compensation she when she started this process i believe in two thousand and six she had no comments ration for her ankle this is where i i understand the logic of your argument but i don't understand how you could have been it then if you view this as a claim for additional compensation how you cabinet to any additional not to include any additional compensation as i hopefully responded to judge dykes question it is not a separate claim in this context you're saying with secondary service connection planes are different in that they want to be treated as part of the same plane as the original disability when they arise in the context in which there is a pending claim for additional compensation when it is raised independently just like when t b i you is raised independently that is and should be recognized by the agency as a separate claim but when it happens within a claim straight and clearly what we have here is an active claim straight that that should be recognized as a separate issue in the question of is there is an entitle much to additional compensation and your problem is calling  condition playing but if it's part of it then it is an increase in that claim not a separately rated claim no your honor because the issue here is not increased the issue here is effective date when the date is for the award of additional secondary service connected compensation for the back related disability and should it go back to when the pending claim began for when she attempted to move from  then to secondary and that it is the context in which this regulation provides for a specific affirmative requirement which this court has recognized for the v a to do connection that this court has referred to by the name of the veterans court decision that i've discussed it called colusa and that first prong and the problem that everyone needs for any claim for veterans benefits is a disability a presen disability and that it is really the basis of this court's decision and only ten when it distinguish between a primary and a secondary service connection claim because in a secondary service connection claim unlike the primary the line isn't so clear as to what is now being called secondary is not a consequence of primary or related to it well well respect i do think the line is clear a secondary service connection claim by its nature is one that would not have occurred but for or wouldn't be a basis for benefits but for the existence of the primary service connection to your problem here i think is with three point three one all which says service connection for a secondary can condition the secondary condition shall be considered a part of the original condition and if you read that together with three point one fifty six b there is an argument dealing with one fifty six one fifty six below only implicates the duty of the v a to consider evidence which otherwise wouldn't be timely presented to the board there were there were this court a struggle the numerous cases over the years evidence must be reconsidered by the v a and to the extent an award based upon the claim pending is granted then claim it gets the benefit of the effective date of claim that started the whole process but what we're explaining  point three term must have some purpose and if the purpose would seem to be that for some purposes you would consider the secondary service connection claim to be part of the primary plan dates what i'm sorry what does that mean well when you're when you're considered considering the overall rating for an individual it's suggesting that although there are other regulations that deal with that so but it would be rating affected they the only one that appears to be implicated is rated the fact that they that the reason they're different claims your honor is because the in service pronk for a secondary service connection isn't an actual in service event or injury like it would be for a primary it's the existence of the primary other words when someone comes in with a secondary service connection as this is implicated in this course this is in the link and the argument about the relationship to service isn't that someone was injured they've jumped out of an airplane or they develop a disease it's that the injury that's already been service connected the primary service connection resulted in a secondary injury or disease or disability i should say that would have existed but for the primary and miss manners cases a perfect example where she was service connected in one thousand nine hundred two for ankles and in two thousand and six two thousand and seven she complained about a back and suggests that the reason her back had developed its disability was because of the ankle injury she didn't suggest that she had a back injury because of some the service event like she had with her would expect her ankles so this leads you to the to the point leads leads leads us to the point where like th ellington you cannot treat those two so primary secondary service connection claims for purposes of effective dates the same as right there you want it with the question i was asking for as to what the purpose of three argument remains that it's it cannot be for purposes of the effect of different one this court's already found that to be the case but two it doesn't make intuitive sense that someone could obtain benefits at a time when they weren't disabled now even accepting this means an heiress theory that she was discussing earlier about in this case there was only a maybe a year year and a half from the time that she submitted her claim for an increase for ankles and the time she submitted a claim for increase or for secondary service connection that doesn't answer the question if there is no disability at the time of the original claim there cannot be under fifty one ten as a basis for finding facts found on the existence of a disability when one exists you need to have the disability in order to obtain the service connection benefits and that's the logic that that's identified in an elliott and that's not answered and in this case notwithstanding the existence of three point one five six b three point one five six b many impose a duty on the viet when reviewing the claim to consider evidence that's lately that's submitted after the sort of occasion of the record to the board and to the extent that goes back to the original pending claim as the plain language of three point one five six b says pending quite in two thousand and six there was no claim for back disability there was a claim for an ankle disability so in the plain language of three point one five six b evidence that came in during that time period related to a different disability does not implicate three point one five six b so there isn't any any basis to concern them so you know there's no doing regulations that are inconsistent with each other it has to be based on the claim pending at the time of the original appeal to the bor we don't have that here the claim that was provided later was one for a secondary service connection that that was based on a different disability which required a different analysis of the not only is the disability different the second the whole nel says it's different you're in service pronto is not to an event or disease gets to the primary disability claim doesn't make sense and we submit that this case doesn't provide an exception to that it doesn't make sense to obtain disability benefits for a time period in which you don't have or at least the facts can establish that you have a disability consequences of the primary disability have become more manifest where where this might work would be in a live claim situation well would still be depending on the hypothetical where the individual perhaps has and this could be implicated through the citation in the reply brief to three point one five five the duty on the v a to try to find all facets of the claim ancillary benefits and whatnot so somebody comes in with an ankle claim it hasn't been service connected but there's also evidence of a back disability but they don't ask for the time so the v a begins the analysis and this is a live claim and determines that in fact the ankles were damaged from service they also find out that there is a back disability and they can figure out that that back disability is also attributable to service in that situation although the  s the finding of service connection for effect of a purposes for the secondary claim to go back to the original claim even though it wasn't claimed then in that situation you could have effective date where both primary and secondary service connection claims would share the same effective date and only the reason that didn't happen is because there was a break there was a claim which was awarded for primary and then years went by and then there was another claim for secondary and you couldn't you couldn't lea back for effective date purposes to connect the secondary cli to the primary claim but i'm not sure that mr carpenter's argument would take us to that point where there was an inconsistency with the result ellington and i understand your point and it's one that's made in ellington the secondary service connection condition may come years after the primary service connection and that  the don't necessarily have the same effective date but i wonder whether his reading three point one fifty six being really leads to that conclusion because all it says is that under his reading that if you have evidence of secondary service connection it will be considered in connection with the original claim if the secondary service connection evidence shows that the condition came afterwards the consideration of that evidence would lead  the conclusion that they have the same effect if it so i don't know whether i make myself clear but it seems to me that his argument doesn't necessarily take you to the point where you where as a result of considering the evidence to be part of the original did mr ellington because of the lack of the separation and that the secondary service connection claim was made during a time in which this man has had a claim pending it wasn't a new claim though it was a claim to reopen an old claim and new material evidence is always going to be geared toward examining what was that will play in this this was sort of the one point we made in our briefs that new material evidence is is is the standard to meet you meet in order to reopen a finally decided claim would you agree that his argument doesn't necessarily take this to the point where the primary and secondary have the same effect of i think that is his argument that because of the happenstance of the new claim being filed while he had an old heiress identifies a procedural vehicle allegedly three point one five six b was within one year of secondary can be considered part of the same claim after one year i can't honor all and i don't think i can speak in terms of years i think that ellington makes no rod i am sorry that's and we think just of his argument is and that could be viewed as the jest but it doesn't need to be limited to one year because you could have a hypothetical in which someone someone's  new material evidence claim is pending over a number of years five years so they keep submitting new material evidence and it keeps getting rejected and then at some point during that process a claim for secondary service connection is made and using the three point one five six  that individual could end up getting benefits for a five year period in which there was no existence of a secondary service connection i suppose i'll ask him but i'm not sure that his argument takes that for i'm not sure i've heard a limitation yet your honor i've heard the argument that the reason ellington doesn't apply is because of three point one five six and asked to do with the happenstance that he had a pending new material evidence claim but and i think the argument would be that simply means that you consider the evidence as to secondary service connection in connection with the original claim if the secondary condition a rose later it would have a different effect of date and i don't think he's saying that one fifty six b necessarily means that it has the same effect if  are two different planes i think that's getting lost here three what's the question and the question is whether i mean certainly you have a very good argument based on the face of one fifty six b that there are two separate flights the problem is what does three point three one zero these of the effective dates in the term in that that they aren't but that you don't have a rule at least per se rule that the effective dates would be the same and we don't feel that three point one five six b is the vehicle by which one can somehow make a disability exist at a time when the evidence suggest it does this and that is fundamentally you get service connection for disability if you don't have a disability you don't obtain v a benefits and so whether that according to facts would be you when you get your benefits there are certain look back provisions including implied claims which was rejected by the veteran sports here but here we believe that this course should follow the guidance of ellington and not so if that were the situation that you know considering the evidence together with the original playing wouldn't give you an effective date that would be the same as the primary service connection that would be correct however what is overlooked by mr hockey in his argument is the mandate that this court has found that exists in three point one five six b to do that very assessment to decide whether it does or doesn't relate to the ankle disabilities and if it does when did it from the date of the claim to the date of the application i think if you just look at one fifty six b you've got a hard road that language doesn't help you much with the and if unless you unless you can say that three point three one home treats them as the same clean for some purpose and that one of the purposes is for one fifty six b then it seems to me you you've got a difficult situation well your honor i do not believe it's a difficult situation because i think the language of three point three one zero is clear that the intention of the secretary is creation of this regulation and it's critically important for this court to keep in mind that there is no statutory predicate for three point three one up the secretary did this under his five eleven authority to write regulations he wrote this regulation with the specific language that a secondary condition that was discovered after service to be re that related to a service connected disability is entitle to be treated as part of the primary service connected condition i thought the purpose of that and i agree that the language is so that it makes clear that the secondary service connected disability has a service connection the as a relationship money but not to do with the fact of it's because we certainly we just finished i mean i think we agree that three point three one zero definitely that one point of it is to establish the service connection because you need a service connection for secondary connected disability and they may arise well after service so they don't have any direct phone but isn't that what three point three one that's about it may be about what else you say about effective dates but isn't that at least one of the basis for it i believe that that is the precise basis for what i think that discussion of affective date is a distraction ellington is about effective date this case is about the application of three point one five six b when the v a receives new material evidence contrary to mr hockey's suggestion three point one five six contains three separate positions only three point one five six a relates to new material evidence for the purpose of reopening three point one five six b deals with a pending claim and it this pending claim is about mrs man's an error as is bilateral ankle condition that necessarily is part and parcel of whether or not she has an additional disability to her back the question of how it relates is whether or not under three point one five six b that disability existed in that window it certainly cannot go back before the date of the claim i can see but from the date of the claim to the date in which she submitted that new in metairie eleven's the date upon which three point one five six b was triggered that is the window in which the v a is required to make its assessment so this case is not about effective date even though that is the result the same applies with three point one five six c both of those provisions are just like three point three one zero provisions that were written by the secretary that have no statutory predicate they are liberal provision