late can carpenter hearing on behalf of mr chester gas there are two issues in this case your honor the second issue is dependent upon the first issue the first issue deals with the question of whether or not under thirty eight c f r three point increased rating based upon unemployability then he would be eligible for that one year look back he's already been granted and he does it make whether it's under one provision of the other well according to the court there was the court below there was no error in the board failing to consider whether or not he qualified for that one year look back on her three point three but it was a conditional rose more than one year prior run that's correct and and that evidence that it will be going up how do you get out from under that by saying that is under one regulation rather the other well you have to get to that in order to establish that you are eligible in that one year look back to rely the one year or the factually ascertainable interpretation would you agree with the interpretation of the statute that you only get the benefit of the one year look if the condition there arose during the one year has to be ascertainable that any increase occurred that increase could have occurred as it did in this case in years prior to that date but was in fact present and continuing and therefore was factually ascertainable in that one year the social security records clearly demonstrate that back in the years prior to the one year look back when though the veteran was unable to work due to his service connected disability from post traumatic stress would or wouldn't your construction o if you've got someone who has had an injury that's been unchanged for ten years or twenty years i think only your construction you would say well it could be ascertained within that one year period that they are entitled to a higher rating or whatever and therefore they get the one year look back that's currently only people that wouldn't get that is the person who actually suffered the injury on the day or about the day that they file their application correct well it's not really a matter of suffering because in this context we're dealing with a condition that has already been determined to be service connected and said then there are the respect of that group of people i don't see be anybody who would be limited to the date of their application maybe i'm missing something well and quite frankly our i don't see any reason that anyone should be limited that this is intended by congress to be an exception to the general rule of the day that the application controls there is no reason that everyone who is service connected should not benefit from that one year look back from the exception but then that's an odd otherwise provided is in fifty one ten b and giving everybody a one year look but as long as the condition existed one year twenty years are all right that's correct as long as it is factually ascertainable that it did exist that case turns on whether or not you are limited to evidence that is created within that what your window and that seems to be an unnecessarily restricted interpretation of the benefit that was clearly contemplated by congress to allow for that for example by analogy in social security when you apply for benefits and social security if you were unable to work before the date of your application you're entitle to go back six months that's just an aberration of the way in which congress chose to write that what would what would you i'm sorry would you suppose we scrub out of the statutory language the reference to ascertain which is a little confusing it just says the earliest date and which an increase in the disability occur would you reach the same result with that one which is you do under the language that's in the statute i believe you would your honor because the goal is is to determine whether or not that which the increase was sought for existed in that one year look back when whether it like it existed eighteen months or even eighteen years before that he is simply not pertinent what is pertinent is is that you as ascertainable so if your condition has remained the same over let's say the previous five years before the application it's hard to say that the earliest date in which the aggravation of your condition could be ascertained occurred within that one year period isn't well i don't think so your honor because that earliest date is in fact qualified by the statute itself which is limited to one year regardless of what the earliest date is the only time earliest date becomes relevant is if it didn't occur until say six months within that one year window and then the earliest date would have been six months before the date of application rather than twelve why is it unreasonable particularly in this system to allow it is able better in the opportunity to demonstrate by evidence that his or her condition existed at the same level of severity in that one year period therefore the earliest date was prior to the one year period but nevertheless had occurred that the increase had occurred taken place in that one year before and that simply makes them eligible for one year's additional benefits that's the intent of fifty one ten b to look and it's the same intent in the regulation as a written by the v a in this case you know from everything that i can see the interpretation that you're giving us would reflect a sound public policy but it's difficult to square that with the language which seems to be so different it doesn't say for instance that if the increase in disability arose within the last year it is presumed to have existed for the previous year we doesn't even say that it's presumed to go back to the first day on which you say that it arose all it says is that you could go back up to a year provided or rooms within this year and the silence as to say that if you have the disability for more than a year your and can't prove an earlier date of more than a year you get when you stretch your activity it's a different concept and it's a concept that  susan other provisions of the statute and so i think one would have to either say this is what they really meant and will fix it or the alternative which is the government's position they didn't say so you can't have it and it seems to be such a clearly different interpretation of the statute that it left me wondering why was there silence on this point if in fact the intention was as you say that you could go back a year if it you had a little more than well you know i think the only way to explain that and i agree that this language is very difficult to both understand and figure out how the plot but to me the way to look at it is to read fifty one ten and a and b together and the critical phrase in fifty one ten a is that the effective date shall be determined based upon the facts and it doesn't give any limitation to those facts and the interpretation that's being offered by the government is that no somehow the veteran must be cl know at the time that they file their application for increase that they must likewise develop evidence about the increase the took place in the one year prior where you're simply not eligible for that one year look back until there's a connection then the question arises did the condition that led to the service correct connection arise within the last year or the riser only that's it's a perfectly sensible construction the statute indeed it's hard to read the stance you know why but except your hon that that analysis is as though this were the original determination this is not in the original determination this is part of the ongoing assessment of the degree of disability and disability are by their nature fluid and do not necessarily lend themselves to the particularity of when a person files and application or when the better know is that they would be eligible for an increase in their rate of compensate this veteran in fact was eligible when social security awarded that benefit earlier as of nine hundred ninety four the fact is that he delayed for years now he's being punished for that the way because of an interpretation of the statute that treats it as though this were the first application this is not the first application for service connection or for compensation this is for the alternative which is what is the appropriate rating and was there an increase in that level of disability and that increases first analyze prospect of leak and then is analyzed retroactively but it doesn't become emmeline's retroactively until it's awarded is the same to the date of leaving the service that's correct and there is an exception for the filing within one year of the data service and that's why without that specific exception exists in the statute that's correct is one of the reasons which causes concern that this is treated differently as if that was not intended and what i'm suggesting your honor is is that there is one category of cases that deals with the date you assign for the award of service connection to original record this under b deals with claims involving increase compensation where during the course of the period upon which the veteran is under the disability the veteran has the opportunity to make application for additional compensation and if granted and granted from the data the application than there is under fifty one and be a one year look back window and the question becomes is the evidence limited to the congress made a decision in one thousand nine hundred seventy five to depart from this longstanding general rule that had been in existence since the time of the civil war that the award effective date of an award is not any date prior connected with the disability and that disability increases in severity that it may be difficult for the veteran to be able to file a claim for increase in a very timely fashion so congress said we will give a one year grace period and bring this rule for increases in alignment with the same thing that it had already done establishing a one year grace period for pensions and for other types of claims so that we could make sense  the increases gradually over several years why should congress then have intended to prohibit the benefit of the last of those years i don't believe that that would would have been congress an increase that may be gradually getting worse over the years that at various points in time when the veteran believes that increasing the possibility of the disability has occurred the veteran can file a claim for increase and then there's and has one year to do so so specifically responding to your honor's question about the veteran who has a disability that just keeps getting worse over time that's absolutely a situation where the veteran can file a claim and benefits as assuming that it's filed within one year every year we we've got means of veterans who have in the forefront of their mind the time limit that they have to be aware of and in this particular class of veterans by virtue of the fact that they're already service connected and presumably they're obviously receiving benefits and i in many cases are in situations where they're frequently visiting v a medical centers and interacting with doctors this is actually a much more liberal rule than that that applies to veterans applying it in the initial claim situation where a veteran might be completely unconnected from the v a benefits system for twenty odd years and only discover at the end of that twenty years that then if it's exist in that the veteran can apply for th that supposed in two thousand the veterans disability increases by fifty percent and that in two thousand and wanted to respond another fifty percent and then he falls in two thousand that is what back give him only the amount of the increase that happened within the one year of the phone the ultimate award of benefits would compensate for the entire increase but  yes i'm i'm attempting to the v a would begin with the date of the claim and look back to see whether there had been an increase during the one year prior which is true yes and and then when if the v a found that the veterans that there had been such an increase the veteran would then be awarded benefits let's say there had been an increase from fifty percent to seventy five percent to ninety percent the it easy if you make it easy and you say that you went from fifty to one hundred on the first of january of two thousand and that he applied on the thirty first of december of two thousand he gets one hundred percent for the entire  u what seems to be a very curious disparate treatment for very minor differences in disability well congress had has selected the one year grace period and of course by virtue of whatever time period congress selects there are going to be people who fall right outside the cutoff for that particular period it's just the nature of the time limitation and how it works but in the legislative history here this is a senate committee specifically included a letter from the v a discussing the fact this one year was considered to be a reasonable amount of time and moreover it is consistent with the one year that i allowed under the other parts of fifty one ten and notably in this case mr gaston had a claim pending in the one nine hundred ninety five time period the same time at which the social security administration made it determination that he was disabled the board opinion in this case points out that the a considered the underlying evidence that social security had also just considered but found that it did not indicate an increase in the severity of the illness that was in it then the result in one nine hundred ninety six board opinion which was not a healed and became final so we don't have a situation of that sort of inequity effective date as the date of the claim that my hypotheticals i'm not sure what your answer is to that that within the one year period there was an increase in the disability but the major increase in the disability twenty percent increase to fifty percent but then within the one year period increased from fifty percent to sixty percent let's assume that the retroactivity gives him what just the increase they heard within the one year period wh the hypothetical we have to two such dates to look at but the latter part of the statute restricts if a claim is then filed within one year so in your honest hypothetical if you would just look at that increase the second increased usually a sudden increase in this ability it's gradual all seems to me becomes extremely difficult to figure out how much of the increase in the disability occurred within the one year period if it's out of it's a  problem of an increase that occurs at the six month period point in within the year but if you just take somebody that goes from starts off in one thousand nine hundred ninety at ten percent and goes up to sixty percent by nineteen eighty it's his nine hundred ninety eight let's say and then during the next year or in the course of the next year goes from sixty percent to eighty percent and files an application within a year of that increase doesn't the person just start getting eighty percent at that point and therefore whatever happened prior to the one year if he has filed an application within one year of some degree of final degree of aggravation that he gets whatever his ultimate number is if it's eighty percent he gets eighty percent as of the his application plus eighty percent going back to a year before if he filed his application within one year of his going taking the last step towards eighty percent that's the way i thought it worked well the am i wrong about that increase had occurred and so if that increase occurred eight months prior to the filing of application because that's within the one year period then that eight month mark can be set as the effective date for the award of the eighty percent connected and is receiving the ten percent disability benefits that ten percent keeps going forward if there's a fifty percent increase in the severity but the veteran does not file in the application for increase benefits within one year it remains at ten percent then when the veteran has another increase there's another opportunity to file within one year now and in practice they give you the entire increase even though percent was found to have occurred well but if you assume that the woman in the if you assume that it to make this simple that let's assume that every time there is an increase in severity it occurs on the first of january of whatever year and if that going from fifty to sixty percent of current on the first of january nine hundred ninety eight and he files an application on their december thirty first nine hundred ninety eight he gets sixty percent retroactive for a ten to fifty three years earlier but he still gets sixty percent going back a year correct if assuming that the sixty percent happened on january first normal gets part of this part of the increase occurred in earlier years ten percent of it occurred within the last year you are saying that even though only ten percent of the disability occurred within the year you still gets a retroactive increase for the entire increase in the disability ye award reflects the full fifty percent even though only part of the increase occurred within the well i think in being the hypothetical that i as i understood it was that the increase had occurred on january first  the what the veteran would not get would be some period of time prior to the one year look back would not get additional benefits those would have continued at the original rate see that the ten the sixty percent since here is no record i think that's right your honor if the if the application is not filed within the one year the veteran can still be awarded an increase but it will not be retroactive unless it's filed within the year after that increase of course here again the v a found that the increase reviewing all the facts including the social security records that that increase did not  is it is it the information that's before the v a or is it the information that could be developed but it's the information that is before the v a and that includes information that the v a may assist the veteran in in developing let's sounds as though it's if any information that could be collected if you did a full investigation within the constraints that i just want to make sure that it's to distinguish an interpretation that might say that that would extend beyond what the duty to assist would would require but in this case the key evidence that ultimately established mr gaston's eligibility to t d r you was  yes that the board found that the first evidence of the increase here was later in one thousand nine hundred ninety nine but nonetheless mr gast in the benefits of the filing date as his effective date is considered if the evidence is one day before the one year look back window you can't consider and that just is simply an on reasonable interpretation of both the statute and the regulation the fact that there is evidence ought to allow that evidence to be considered in this case the evidence was not considered because the v a said he did meet the schedule requirements for you therefore he couldn't have qualified as a matter of law and then they said that the social security evidence was created before the date well certainly it was created before the date of his application but that is not a reasonable interpretation of either the statute or the regulation to prevent arbitrarily the board from considering this information that doesn't mean that the board will agree with him that it was factually ascertainable that there was an increase the question here is the ability the right of the better and to have all of the evidence that is of record consider in an examination of that one year book back window as to whether it was or was not ascertainable that the increase had occurred assist for the questions