final case for argument is fifteen seven o eight for mitchell versus mcdonald court's decision in jackson because the jackson case was a question of revisiting a question that had been decided by the v a in the first answer and that was the question of the immaterial for evidence in this done what he did decide unless there had been new material evidence right because the v and a doesn't have the right to reconsider a final judgment in the absence of new material evidence so they couldn't even have done what they did i granted they certainly didn't address it and i'll grant you i probably don't think they even thought about it whether there is newer material evidence here however they could have done what they did decide in the absence of new material evidence that's not right no your honor because i don't believe this record showing as the board often found that there was no need to case and in fact the provisions of nineteen point nine eighty contemplate when the v a makes a procedural error such as this to make a decision without dealing with the threshold question of new material evidence that that is procedural errors that were choirs remained to correct it in other words the board should have sent the case back to the agency on in jerusalem suppose and i'm going to oversimplify these facts ok but suppose that the board has to say there is no material evidence before they decide whether or not the earlier decision remains correct i'm oversimplifying that's not exactly the facts of this case i get that but suppose that the that the v a has to make a decision on whether there's new material evidence before they're permitted to then reach the merits of a new decision one the basis of the record we suppose that's the case suppose they jumped over step one didn't cite new material evidence but they went ahead and said regardless of new material evidence this case would warrant a different outcome because i know what's wrong with that i mean you know we sometimes say without deciding this but finding in your favor nonetheless you would lose so what's wrong with the v a doing the same thing because of the nature of these proceedings these are proceedings that are in this case before a pro se veteran he was represented by a national service organization but neither the veterans nor the national service organization understood that there was a prerequisite for the submission of doing material evidence in this case in order to get the matter reconsidered and if of the court will direct its attention to the argument that was submitted to the as the veteran contends the eligibility for be a benefit should be based upon his honorable period of service to a service related injury that was not the issue the issue was whether or not the veteran after having been previously denied four with new material evidence sufficient to reopen the hearing officer on the very next page identifies the fact that they clarified that that was the issue but that was the first time in these proceedings beginning with the v a s original decision for the veterans notice of disagreement to the statement of case that was issued in his substandard appeal that was filed that anybody talked about new material evidence as what was necessary so all of this time was quite candidly wasted because no one spotted the obvious omission the obvious procedural error that what should have happened here was the v a should have additional inquiry you cannot reopen this case without submitting new material left otherwise our previous decision stay and say what do you want to happen here you want this to case to go back to square one for the purpose of the way making that determination explicitly yes that that what should happen is that this court should find that the board did not have subject matter jurisdiction that nineteen point nine a controls and that the board should have referred the matter back to the v a to decide the question of doing everything that is a realistic possibility at the board which changed its mind when it was whatever point time in your view it has appropriate  well actually i don't believe the case would necessarily have to go back to the board for a final decision because it goes back to the agency of original jurisdiction then at that time quite candidly with my representation he will submit new and material evidence and that new  material evidence will be in the form of a psychiatric evaluation that meets the criteria for insanity under the v a s definition but waiving it i guess this is just a pedestrian question which is if you saying that the that transit ministration should decide that question based on the record that was before it at the time that because of the provisions of one thousand point not one thousand point nine provide that where there is a procedural defect in the administrative proceedings that the board recognizes and in this case fail to recognize should have required the case to go all the way back to the agency of original jurisdiction to put the veteran on notice that the issue was new material evidence and that in order to loses his effective date of and that's why this issue is so crucial because the or expanded its jurisdiction to reach an issue that had not been decided by the v a congress expressly stated in seventy veterans law judge in the final hearing before his decision he'd reframe the issue as new material evidence which is the correct statement of the issue going all the way back but mr mitchell was given an opportunity was given the opportunity to submit that evidence and that is more evidence in my view your honor of why in this system that is supposed to be not adversarial but you explain clearly to the veteran that the consequences  not doing that in other words if i hope that the justice is going to hold the record open for sixty days what he didn't say is is that if i don't get that evidence i have to deny this claim because that evidence is the evidence necessary to meet the threshold requirement to reopen that threshold requirement was never decided by the v a the only decision by the v a in the first instance and the decision that was appealed by mr  question of the merits determination was here wasn't he eligible based upon the character of his discharge and he clearly was not based upon that record the only way to change that is with new material evidence of his psychiatric condition a didn't do that in the first instance the and as our second point is is that that notice does not comply with the fifty one of three c one requirements to explain to the  veterans the consequences of the overlook evidence all the the the veterans law judge was to acknowledge that apparently he interpreted from the comments made by the representative that he was introducing a new issue of so i'm holding the file open for sixty's for specific evidence and then down at the bottom he says you're going to have to get your mental health care provider to write a statement saying is your view the medical records and so on why isn't that enough because it doesn't explain to the veteran what insanity means under v a regulations insanity does not mean the mcnaughton rule of insanity it has an entirely different and much broader definition of insanity for v a purposes without informing him of that distinction he has violated his obligation under seventy one percent of the three point one zero three c one the veterans court in the bryant case clearly interpreted the obligation of any v a hearing officer who conducts a hearing to explain give you the specific language it is the responsibility of the be employees conducting hearings to explain fully the issue is different from the common understanding of insanity if you just took these words at face value as a pro se appellant and they're not a purely practitioner of the veteran service officer you have no way of knowing that there is a completely different legal standard for insanity under v a regulations than under the common understanding of what insanity means and that is the part that is lacking and that's critical to the misinterpretation of the obligation on both there were two earrings in this matter and the first one never mentioned them in the third level and you don't get the mention of doing material evidence until right before the board is about to make its decision based upon the correct legal standards when affirming the board's decision and finding that the v a sufficiently explained and fully explain the issues to mr mitchell that were on appeal with regards to the jurisdictional issue although the board has its own independent requirements to consider whether or not it has jurisdiction over the issue of whether or not there exists new and material evidence and when in reviewing the decision the board looks both to all of the evidence have been submitted in the hundred ninety three decision and the evidence that had been submitted the new evidence that had been submitted as part of the two thousand and eight review and the board held that there was in fact no new material evidence sufficient to granted any jurisdiction over mr mitchell's claim in addition to the veterans court applied the correct legal standards that issue in this case the veterans court was correct in applying the c of our thoughts that three don't want to have three because at the board level the board clearly explained to mr mitchell that the issue before him before the board on appeal was the issue of new material evidence said it had to be different evidence it had to be new and it had to go to his claims it had to be good was claims that he was not responsible for the conduct that led to his bad conduct discharge that was the same issue that was present before the d r o at the lower level where mr mitchell's initial claim and i think this is important that mitchell's initial claim was for an upgrade of the character of his discharge while he also claimed injury for during honorable service his his in his own words he sought an upgrade of the character of his discharge and what went those two related i mean wasn't that a necessary or necessary for him to get an upgrade of his disability or to a related right correct ron and that there was an initial bar that mr mitchell had to had to overcome in order to reopen his claim in order to get his a entitlement to get benefits he first had to overcome the one thousand nine hundred eighty three decision that he has bad conduct discharge was considered dishonorable for veterans purposes veterans benefits purposes and at that point in time then he would have to prove it was a big entitlements to injuries service connected image or injury so what the decision review officer was looking at was whether or not mr mitchell had presented any evidence to substantiate his claim that his bad conduct is that his conduct that resulted in this bad conduct discharge was impression of the reason for your discharge so the d r it was opposing a high standard that mr mitchell had to substantiate his claim while the board was simply applying a threshold standard a much lower standard of has mr mitchel mitchell presented new and material evidence sufficient this to raise a reasonable possibility of substantiating his claim the board wasn't asking mr mitchell to meet the standards that were at the d r a level the board was simply asking mr mitchell to meet a much lower standard present some evidence that's new and material that is distinct from what had been presented previously that you were not responsible that there's some reason to change or bad conduct discharge and if you're claiming insanity provide some evidence of insanity and the notion that mr mitchell did not understand what was being asked of him and his representative specifically didn't understand what was being asked of him why the record given that mr mitchell specifically asked for the sixty days for that in front of the board citing to a specific evidence mitchell was that he had to alter the character of the discharge so they gave him an opportunity to submit new evidence effect did submit new evidence he submitted evidence in the two thousand and four two thousand a time frame there were some doctors i believe some doctors the records and psychiatric poor corrected if there by the by the if it is an error by the lower court by the d r oh by simply providing that by clearly explaining to mr mitchell that the issue was new immaterial evidence that he had to submit something new something different and if he was to be given to him and by assisting him in telling him what he needs to do should come at the first stage another second stage respectfully are i believe that what was presented to mr mitchell at the first stage in the bureau hearing and in the decision below was was more than what was presented by the board again with the the arose asking mr mitchell to do exchange presented evidence that changed the nature of his discharge according to the previous ninety ninety three decision so there was a much higher threshold that the d are always asking mr mitchell to and me don't you see that is problematic that's what i mean that that's that's a problem yes like if i tell you you need to prove beyond a shadow of the doubt something well i'm not going to bother a shadow of a doubt it only proves that sort of and i'm not going to bother with this because it's not quite strong enough and do you not understand that if if the the a as you're suggesting gave him the wrong information about your oral argument you suggested that the a instructed him that his burden was in fact higher than what it was due to those are your words in two separate occasions so if the v a instructed him twice or if you said twice that the v a s instruction to him was higher than what he actually needed to establish do you not agree that the v a s instruction to him regarding his burden of proof was inaccurate you would give it was and it may have been inaccurate but in this instance it was not helpful to mr mitchell because in effect as i think the the course questions and recognized the may have recognized that the d r o overcame implicitly overcame the hurdle of new material evidence reopened mr mitchell's claim looked at all the previous evidence without even without kind of deciding the specific question of new material evidence so would it look to the specific merits of mr mitchell's claims that asking him to meet the lower threshold of new material o saying because i thought the government argued that the v a implicitly decided are you now saying the v a didn't implicitly decide the question of new material evidence i just heard you said without even looking at the question of no material evidence is the government's position merits in order to determine whether or not there mr mitchell was intitled to v a benefits it had to get to the merits of his eligibility and by doing so it implicitly implicitly decided that there was new material evidence in order to reopen the claims of the when it got to the the poor the board simply let's recognize that the v a denied mr mitchell's claim on the merits when it got to the board the board presented mr mitchell with essentially an opportunity by simply telling mr mitchell that all he needed to present was not enough evidence to succeed on the merits but simply enough evidence to show the board that there was new and material evidence to raise a reasonable possibility to substantiate the claim and at the board level he specifically says that it leases that because if they requested sixty days to provide that evidence i know evidence was provided to no new material evidence was provided the board determined that the evidence was cumulative it was not material i have there was no reasonable possibility of substantiating the claim and mr mcgee mr mr miller also seeks to argue that the  veterans court applied the incorrect standard of the site to three don't want to three and notice that the the board and the veterans court were required to consider the duty to assist along with the entitle me to or to be the duty to provide medical assistance as in considering what was explained to mr mitchell at the v a both at the the r level and the board level but the cases relied upon by mr mitchell don't support that argument where the case  that until the claim is reopened there is no duty to provide medical assistance it is simply the board must simply consider whether or not if medical systems were provided would it have a reasonable possibility of substantiating his claim once the claim was reopened but the board he there was no new material evidence and so the veterans court was correct in not applying the the question of whether or not and in determining that mr mitchel but effectively not entitled to any medical assistance in or in the state psychiatric evaluation provided by the v a and in addition i mr carter raised the question of the insanity standards and what was fully explained in the guise of insanity standards what was presented to the board was not the question of whether or not mr mitchell was insane will the board was simply asking him to present some evidence that tended to show that he was not responsible for the acts of whether it's bad conduct discharge the board the judge said quote i'm broadening it to basically come in with evidence to show that you were in fact insane at the time you committed these acts let me continue the quote insanity is a very specific requirement and your examiner if you're able to get the evidence is going to have to document why you would meet the definition of insanity that doesn't sound at all consistent with what you just claim the court actually said what the board with the board actually with were presented to mr mitchell was a requirement that he presented some evidence that tended to show well where does it say mr mitchell i'm there reopen the records so you can introduce some evidence that tends to shop where d say that because actually what i read is it to basically come in with evidence to show that you were in fact in saying at the top i committed these acts intent is a very specific requirement and your examiner if you're able to get the evidence is going to have to document why you would meet the definition of insanity man that sounds like a very high standard and completely inaccurate standard as to what he had to actually come and tell your i believe looking at the  entirety of the board's hearing with the board was saying is that the issue before the board is new material evidence and what the judge was doing there was saying to mr mitchell if he was going to raise as the fence of insanity the board was going to permit him by expanding broadening the scope of  simply the new material evidence issue to also recognize that if he's going to present this evidence for of insanity he's going to have to provide a document provide evidence that documents his insanity that he's going to provide a medical opinion that establishes that connection between his  discharge and any medical related trauma that occurred and mr mitchell i think supports you know that in response to this in response to mr mitchell requests to provide additional evidence mr mitchell didn't provide any evidence of any type to describe any any specific insanity it's the only evidence you have provided was simply that he was receiving treatment post service for certain mental disorders but there was no specific evidence of any type connecting his time in service service i was any specific insanity or mental illness or otherwise in fact the evidence tended to show that there was no record of any sort of mental mental disorders or mental issues at the time for this service and if they're not i believe it's clear that the board decided the matter other than the back of the site by the v a they could equally clear from the statements made by this v a s representative that the decision review officer imposed a higher standard