exactly the same claim and that identical claim is finally adjudicated that constitution adjudication of the previous claim as well right is certain and why isn't that show writes my position that  is original claim he was never given notice of the the result of the initial claims the show when he's given notice the second time around that the claim is being  he knows that the claim is being denied by narrow every hour of the second i mean there's no there's no there's no failure no he just learned little later year later it was being denied his first opportunity his first bite at the apple two appeals direct seventy seven versus the seventy eight his appeal the seventy s he would have lost the first on seventeen months of benefits and didn't and perhaps he didn't get the notice because he didn't respond to requests for evidence to support that claim if you didn't get knowledge of it he didn't get the reasons therefore either saw i was going to know what new material evidence is available to support his claim in the one nine hundred seventy eight claim on just just a few more we're gerard it's my position that the d h failure to comply with the statutory procedure requirements regarding notification benefits terminations had the effect of extinction my client claim dated back to nine hundred ninety four and he's asking for an earlier effective date and as part of a finding of an earlier effective date he can come back later and claim all i have a pending an break but the point is that that the failure to have given him notice of the original additional to nine hundred seventy seven is harmless error unless he can establish that he was going to prevail on the seventy eight point thus putting into question what will be affected day should be seventy seven or seventy eight as it was it was in the ninety's because he filed a later claim where he prevailed he prevail that the the seventy eight claim is a claim to reopen right and i disagree with that premise but assuming that that were so there were the seventy eight claim was treated as an original claim and there was a denial of that claim and there could have been filed a notice of disagreement and then as if as in myers the v a had failed to issue a statement of the case then you would have miers but miers is completely different in miers there was a notice of disagreement file there were subsequent applications to reopen and there was never a response from the v a statement of the case that is required to issue an order for a veteran to perfect an appeal to the board but in this case since we know at least that's exactly correct the obviously incorporates by reference the definition provided in three point one sixty d e speaks to a claim reopen for new and material evidence which is the aside from q which is a different matter is the one of the two ways of challenging a decision and clearly it requires before a claim is quote unquote reopen for new and material evidence that there had been a final education in the first place in this case there was not there were two applications for the same claim the two applications were denied by the one nine hundred seventy nine decision that said we deny service connection for nervous for the nervous condition that the veteran claimed in under well established case law if there had not been an intervening denial but there was an intervening tonight he filed a south second application of sept second statement form statement in support of claim on the very s that claim was denied and what he received actually at a at the in the appendix of page one fifteen is a letter that doesn't refer to either application but simply refers to the fact that his claim for a service connection has been did not it does not refer to either application now the appellant's argument is that the rating decision refer specifically to the first step occasion and that is true but at the time the practice of the it was not to mail the ins finality and starts the appellate process so the fact if in fact he had submitted a boatload of evidence in one nine hundred seventy seven along with this claim and had not submitted sufficient evidence with his hundred seventy eight application then it would not matter because there is a decision from the veterans court on the claim and this court has been clear in the decision on the claim have to review all of the evidence and record including the when he when you say he doesn't we open his claim he reminds the secretary that he has a claim the same claim we have his second by the apple is not very good and him cite much evidence if he had c earlier he was not going to benefit yeah you should i mean if you've got a n r o decision that did not look at all of the evidence you would obviously be able to appeal that to the board to say they are didn't comply with its duty to develop my claim and to look at all the evidence so that that would give them an issue had he appealed and had the facts been as judge protest put it to me in the hypothetical but those in any case are the facts here well i original not reopen what is it is an additional application on a pending claim if your honor will look at three point one sixty c i'm sorry three point one six to be first  original claim is an initial formal application on the right or prescribe to the secretary see a pending claim this is actually the status of a claim that is being defined as an application formal informal which is not and finally adjudicated in between when you have final adjudication i'm trying to figure out what is seventy what's what right proper nomenclature for the sham of the piece of paper he filed it's a statement in support of the calling that is pending at that time and d because there are i think that the use for example of three point one sixty b of an initial formal application for the use of three point one sixty eight of an informal claim which is something that is filed in that an application that subsequently filed that contemplates that the v a will receive and in fact in practice it does receive many statements that pertain to  a given claim that is pending it is frequent practice for the v a to receive supplemental statements in support of a claim before finally due to cation by the r and that is another reason why this regulation and the statutes and the cases that are involved should be interpreted in the way the government suggests here because if the v a were required to decide all of these papers that it may receive as for the nervous condition that he put his application then under this court's precedents under the veterans courts precedence in the cases that mr williams sites such as miers and several other cases then the pending claims doctrine would apply in that instance and the claim would be open and the v a would be in a position of having to consider whether you know the that claim the nine hundred seventy seven claim and we're assuming that the nine hundred seventy seven claim wasn't properly handled or something or a describe the factor in this case aside from the fact that the secretary is on interested in rewarding financially this particular veteran with her earlier effective date and ninety four which i could understand  s the policy argument against the balance point of view which is to say ok when you turn me down you may notice because if you give me no as than i can decide whether i want to pay or don't appeal don't put me to the effort of having to use a file some supplemental piece of paper to remind you you haven't done what you're supposed to do they want what's the harm to the agency let's say of their maybe if you pending cases that against that because because for the very the very reasons i was just stating if there hadn't been an one nine hundred seventy nine decision then the cream would be open and the v a is required by the statutes to give that notice so i don't have a captures it very well that policy are having of not having claims be open that would indeed favor the veterans administration and the department of veterans affairs  knives you know two months later three months later then and there never was a chance for an appeal let's assume he's got survivors who could actually take if he could that's not the answer here are the the quite the answer the question is that the claim is a lot i mean the claim stays because this court of the veterans court held that if there isn't notice given that could affect a veteran you know it in the way that you're suggesting but i'm not sure if there is any way and i am sure that interpretating the question in this case will not prevent that how come from happening