member county and dish seventy ninety six the holding below was that the mr bond had not appealed the main one nine hundred ninety seven decision mr bond was not required to have appealed made one nine hundred ninety seven decision under the provisions of three point one five six b because material they did not your honor except to the extent that they implicitly made that finding because the evidence received resulted in an increase over the initial rating assigned to them a nine hundred ninety seven  within the one year period in some circumstances can be a new claim and in some circumstances can be new material evidence with respect to the earlier one i'm not quite sure how it could be a n because if it were a new claim that you just heard that it had no relationship to the decision that was made in the relevant one year appeal period right so what if you have a what if your first claim related to a back injury in your second the word check specifically you know that sometimes evidence relating to the same condition will be a new claim and sometimes it will relate to the earlier point and then for a check or the new evidence was  that there'd been a worsening of the condition right yet so under some circumstances at least you'll have a new claim even though it's the same conditions being  but if it one reads for a check in that way that would be correct i do not believe that that is the correct way to three point one five six b three point one five six b we're late to the matter that was pending and the matter that was pending in the original claim was the entitlement to the maximum compensation for your can your contention is that despite or checked every submission within the one year period if it relates to the same condition as to be treated as new and material evidence with respect to the original koine rather than as a new claim i believe that's what's required by the regulation your honor i do suppose we were to reject it and say that word check rejected that in that there is a distinction to be made between even if it's the same condition between new claims and new material evidence with respect to the old one were you lose them i don't think so your honor because of this court's decision in jennings which can that be because three point one five six b says that if there is new material evidence received within the one year appeal period that that undoes the find that live picture which are not accepting my assumption i ask you to assume that under for a check there's a difference between i even if it's the same condition between a new claim and new material evidence with respect to the old one right so if there's a determination if there a determination here that it's a new claim you would then in loops correct with that predicate yes however i do not believe that that is a valid predicate because the notion of a new claim reads out of the plain language of three point one five six attempts to distinguish between claims at a it in a circumstance in which there is no distinction the issue is the rating to be assigned the claim that was made in october of one nine hundred ninety six for compensation for this psychiatric disability that claim was granted but not at the maximum rate it new material evidence about the severity of that condition was received by the v that seems to be challenging the determination that this was a new client and isn't that isn't the question whether it's a new claim or new evidence for an old point of fact no your honor i think it's a legal issue because of the nature of this regulation this regulation is unique in that it speaks to the v a s receipt of information that relates to a claim that had been decided but was within the appeal period and i'm suggesting that notwithstanding the decision in for a tract that makes i believe an artificial distinction between a new claim there is no ability to make that artificial distinction under the proper interpretation of three point one five do you think what you're saying and what you're saying is that the board has an obligation to assess the admins to make a determination first as to whether it's new material before it can make a weight to substantiate the threshold for jurisdiction to reopen we're not talking about reopening here because there's been no finality so it must necessarily be a lower standard of new and material evidence lower definition of that phrase the phrase used in three point one five six a and three point one five six eight is a function of fifty want to wait because fifty one only deals with finality three point one five six b unschooling as i am not understanding because if there is an issue to be determined whether it's a new claim or old evidence and respect new evidence in the spectrum all one that would seem to be a factual determination and there was a determination here by them or was there not that it was a new claim in the most recent decision i don't believe they addressed it your honor i do believe in an earlier decision it was addressed but i'm it's my recollection that in this most recent decision it was not because it was that the two thousand and four i believe the v a just our court of appeals for veterans claims decision control the disposition of that question because that dealt with the schedule criteria as opposed to the extra schedule work right but that your honor is the importance of the court below is holding it right is to recognize that there is only one claim third or compensation to make these distinctions is both artificial and inconsistent with the nature of this system it's imposing a burden on the better and to be able to make this type of show which he should not be required to make such a show he has made a claim for compensation and he's trying to get the maximum benefits he submitted the one material evidence based on the hospitalization it was initially rejected and they said no are good what you're saying is there shouldn't is that if it's the same condition you submit on the additional evidence that must be considered in connection with the earlier point even though it might also support a new coin that is a legal argument your honor i think that in order for that to really be squarely at issue here however there would have to be something in the record indicating that the courts or even the board perhaps actually interpret it somehow interpreted three point one five six  not it made a factual determination based upon the language of the regulation which in and i think was important the hard thing is the actual determination doesn't appear in the two thousand and four board decision there is no factual terminations this is not new material evidence the board just presume goes forward with the idea that it's a new claimant his argument is under the regulation since the evidence for teams to the same claims this regulation requires it to be considered so while it may not be certainly the court has his house on multiple times a feat the veteran is not how to a specific standard in terms of the language that they use however i do think that there needs to be some so that there has to be some sort of line by which the aro is allowed to sort of make some sort of determination did not constitute new material evidence here the problem is the nature and characterization of the very evidence that it clearly does not go to i'd like an increased rating there is nothing in that medical report that supports the notion that something happened between men when the board decision was rendered and january when the medical evidence was created there's there's no the medical evidence doesn't pertain at all to something new that would give rise to an increased rating the evidence itself is quite explicit it starts off with the patient comes to me and is upset about the fact that the earlier rating said he had a stable relationships and a good working situation and then it details he has not he said twenty five jobs in ten years and he's had lots of instability in his relationship it's directly rebutting the evidence is clear directly rebutting you know i'm not charged with the obligation to make fact findings but you're saying well there has to be a line that's strong and what i'm saying is if you look at the evidence in addition to his single handwritten statement saying i think i should get an increased rating that maybe the line is you have to look at both because of a simple cursory review of the evidence here demonstrate something quite contrary to what you're arguing and so maybe the rule of law should be the board has to look at both and then make a fact finding not look at the single sentence like the board check case did we don't know what the underlying evidence there said so here you have a single sentence handwritten by a veteran and ever to that goes recognize that they should always consider the evidence and old point as well as perhaps well i think that the court of appeals i'm sorry the court the veterans court's decision in two thousand and seven does analyze whether or not material evidence on explicitly does that on a joint appendix one seventeen through one nineteen there's a discussion of whether or not you have a question of whether it's new t pertaining to that but it didn't reference being in the ninety seven decision which was the decision upon mr johnson initial october ninth six claim and said that it didn't take any issue with the underlying factual predicate of that initial decision and therefore again it didn't analyze the medical evidence whether what the court did and first of all it's not the records right to do in the first instance but what the court did was to say the face of the documents that it was a new claim and therefore there is nothing that should have highlighted the fact that it wasn't a new claim but doesn't that turn three point one five six on the head because the whole point there is if it's new and material evidence then it relates to the pending claim so free for to make the determination in the first instance that it that it doesn't relate to unfortunately however i would say that that much mustard much of mr bond's argument doesn't actually look at all it will again i believe is the factual determination is what constitutes new material evidence how do you even get into three point one five six eight or not be looking at this issue but with regards to whether or not the actual determination was correct that january ninth ninety eight port didn't say did not relate specifically to mr bond's condition as of october of ninety six or  well i think that there were poor again to go back to the definition of new material evidence under three point one five six it has to be something that is significant in order goes to the likelihood of supporting the underlying predi we have a different circumstance here but i don't think it's fair to say that every time a veteran submit anything within one year once they've already got an initial rating that that constitutes new material evidence there has to be some sort of analysis of what the submission coupled with the fact that the cover letter did say i'm looking for an increased reading led them to believe that it was something where he was looking he was not saying you got it wrong in may of one thousand nine hundred seventy because my condition was much worse than what he was saying  hundred seventy s their rating decision that actually increased to seventy percent was based upon evidence which was submitted between one thousand nine hundred ninety two thousand it was not actually that february ninety eight submission however the context