we have a busy morning this morning we have five cases that we're addressing today one is on the briefs and we've received the briefs and are moving forward with that to assist with regard to be a medical records under three point one five nine three and the issue really revolves around whether the the records must be relevant before the the duty to assist would apply what you did not i might rent remembering correctly did not make the argument to the veterans court that relevance was not necessary only that there hadn't been a sufficient determination an explanation of yes  n they looked at whether under seven ninety two i think it was a created the case jurisdiction after the vsa after the the amendment to the jurisdiction and  that on the assumption that relevance was the standard that i thought it was a problem that the veterans court appears to have decided relevance for itself incorrectly as a matter of law because it's a factual matter and that we were remained at that point i assume we could say by the way when it goes back to the board apply the correct standards and if we got to that and also accepted your view that when the records are revealed a record there is no relevance requirement nevertheless there is a materiality standard and then the standard of what is that subsection d that says if there's no reasonable possibility of substantiating the claim the inquiry can stop what difference would there be between that formulation and  let me try to understand it quite so you're asking if the first part of it is maybe waiver doesn't matter if we're sending it back anyway in the second part of the question is even if we relevance is not part of  what is it is not required to get the v a records as opposed to every but all the other medical records that are in the list nevertheless the secretary doesn't have to do that can can indeed the regulation directs the secretary to refrain from i think is the word from getting records if there is no reasonable possibility that it would substantiate the claim and i'm trying to understand is there any substantive difference between relevance and that subsection the standard about no reasonable possibility of a yes or i think that there is and the relevance i think is a much broader class of evidence when you look at the this th relevance the evidence becomes does it inform the decision maker on this particular factual issue well i can i can understand how relevant has to be broader than reason no reasonable possibility of assisting the claim because it could be could have a substantial role in defeating the claim you've got no interest in that side of relevance how could it be relevant in a way that would be helpful to the claim unless it considered with everything else created a reasonable possibility of substantiating the claim well i think before you get to that your honor you have to know what's in the records and i think the limited information in this case yes or yes your honor there obviously there are some evidence that on their face have nothing to do with the claim and i and i'm not suggesting that all evidence is required to be obtained by the this is specifically to v a medical records if court i understand that but looking at the reasonable possibility that exist now in this case we really don't know what your old records are doing notes so so there's no way to determine whether there's a reasonable possibility that such assistance would aid in substantiating the clinic that's the problem here that's a problem you have yes or yes don and that's the problem that i have with with them not even attempting to get it or even talking about it  we don't know what's in the records now they did beside this on the basis of a statement that your client made when he was asked about that and he said well there's nothing there i i would have felt good at that time or something to that his statements or was that there's not they found nothing wrong with me and that really doesn't inform anybody about the content of those records we know the secretary has as acknowledged that they were properly identified on within the regulation which means that they know where to get and they know that the wouldn't that wouldn't that statement on its face that was so short a relevancy it could depend i'm not saying that required i'm just saying wouldn't a statement like that prompt the v a to say well you know the the veteran here thinks said that nothing was found wrong with them but he's a veteran he's not the doctor yes yes your honor and a exactly right he is not a doctor and and the issue too is not whether there was something wrong with him the issue is this his his condition itself and the the history of his condition the next or the cause of his  and it's it's well established wolf in the ninety's today that he has something wrong with him for so for him to say that there's nothing wrong they found at the wrong with me i think is is incredible actually incredible and the v a can hang the are in terrible pain and we've written lots and lots of records of symptoms about the symptoms in the records but we can't find what's wrong with the symptom evidence would probably be pretty significant right yes that all medical records that would relate to that actual same symptoms are diagnosis that the person is complaining would be relevant or is it just took in five points determination  protections in there for harmless error both at the board and at the c d c but i think that in any case when you're applying for benefits from the v a you need to understand the history and the and all of the regulations  talk about looking at it through the history of the disease and you can't really be performed unless unless you have a clear and complete picture of i have a not required i'm just curious i just don't know yes ma'am they do any direct the veteran has access to his his or her own records upon request to walk how can we be this far along in the process without having the records and panned by them when they were identified in the ninety's the this is a lot of a conjecture on my part but i think that the obviously we're still in paper records at the time and they were they were using the i'm drawing a blank on the term that p c a done did away with the forgive me but if i mean we've been or you've been litigating even the reopening claim for quite a number of years in answer to judge stolz question you said i was wondering the same thing when we are currently in the situation where we trying to think about whether records we do not have might have anything to say yes and it's odd that we don't have the records if you could ask for them and get them it that's true however and in this particular case i think in a lot of cases one there in asheville and the veteran was in south carolina he doesn't have any money to get there granted he could just send the army and the v a already has them and it's much easier for the v a to get and then it is for the veteran to obtain them and submit them he submitted medical evidence from many years that he thought was sufficient based on the notice that he was given from the v a new material evidence this i believe is new  double double digits but it doesn't say relevant with respect to v a medical records or records of examination or treatment at the non v a facilities authorized by the v a this is a non be a facility  o or a facilities authorized by the v a your argument is that the fact that the word road is is in the provisions above this provision in the ones below it but not in this particular provision that that means that the word relevancy standard doesn't apply to to this particular provision what case law do you have that would support that oregon u s is i think our strongest there when the drafters put it put a word in one place and not another presumed to have been intentional and i think that's i think from a long line of supreme court case law that they know what they're doing and they know when they want to say something they obviously know how to say it because they said it here and when they promulgated to duty to assist regulations under other benefits they included relevant as a as a secretary can't do more it also says the secretary shall implement all this by regulation you put that together and it seems to me a subject to one possibility the secretary is perfectly entitled to write a regulations that stated that the duty to assess this doesn't really say what it doesn't say we made a mistake on the get include the word relevant in this particular subsection for describing this one type of medical record it doesn't say that it just is something that's like legislative history or regular tour history that's inconsistent with the regulation itself isn't it no it doesn't say that they made a mistake because they don't believe the v a understood understood the wording of the regulation and its intentions to being consistent at the time that it published this is this is the explanation of of what it speaking for others again this is the first publication of that this is the publication of the proposed and the final should i assume that language will like this a block quote from the federal register upon the notice of proposed rulemaking does not  in the federal register announcement of the adoption of the rules finally or you would have quoted it it does not now there was there was no issue or there was there was no indication that that anybody who read the proposed bill who commented on the propos there's nothing wrong now he has discussed well that could establish a continuity of symptomology which is one of the elements that is for fire that a claim that was required to establish a service connection disability however from the nineteen eighty four of the medical evaluation and v a might add to that evidence and nobody has ever looked at them and  addressed the question of whether they help stablished this continuity of symptoms so that can't be the standard for deciding whether as a threshold matter one gets the regular gets the the any sort of service connection he is by his own testimony the doctors didn't find anything wrong with him focus on the position that he the reason one thinks these records are relevant is that it occurred before the other things that the board thought were the doctor's opinion would well again your honor that is exactly what the board found in one thousand it's one thousand and seven decision again this is page thirty three of the joint appendix the board said of his testimony that pain is not competent final decision that mr sullivan never appealed so cicily have should be better and had made it legal conclusions that had a legal opinion as to the effect of a statement before th that establishes a service connection here than if i had nothing to show that one of the pain of that which he has continued to complain for now almost thirty years is related to his service in the military look let me see if i i mean this is a reopening claim so reopening claims always occur when there is some prior decision and with a reopening claim he has to among other things show material evidence something that creates a reasonable possibility of substantiating the claim that i maybe a little bit off but roughly that is the regulatory definition of materiality and the duty to assist regulation or maybe even the statute i guess the regulation says the duty to assist applies to claimants seeking reopening so here he is say i know i have this standard to meet for reopening materiality there must be some circumstances in which i may be i must be able to meet it with because that's what we have reopening from previous previous decisions unless get those records and what could be a response to that is a board determination that there really is no reasonable possibility that these could substantiate the claim and the problem a look at soup page three thirty three and see that the board made the factual finding that you're certain about their actual medical record when it's much scuffed here well because the board looked at the record developed before it as a whole which includes his testimony about this and here he talks about you know the key that they don't specifically call up this one sentence of testimony but they talk about all of the information before they talk about the record as a whole and here they know that he talks about his pain he talks about his that being that he said dennis i think it's quite reasonable for the v a to go and get and look at records that they already have are especially the twenty first century they can click a button on their computer and pull up every single be a medical records electronic granted these are much older but i think limited to whether or not you know these correctly describe what the doctors told him i think is a little it's reasonable for them to go out and get those since since your time is short i realize i'm going to interrupt your second and third points but  why does the determination by the board in one nine hundred ninety seven not amount to a determination that whatever those nine hundred eighty four records may contain they can't reasonably  a couple reasons number one there's no indication in one thousand nine hundred seven that the board ever considered continuity symptoms and i'm in forgive me but i don't think she or shut they was even decided until right around that same time and so that legal theory wasn't well developed at the board number two they never mentioned those specific records they talked about other records by name which dealt with a different time frame but the board never talked about these records and three well grounded claim which was the term that had left my brain for a minute you had to first show competent evidence of a nexus between an injury and service the board in one thousand nine hundred ninety seven said no it was this car accident that caused it therefore there is no well grounded plane the law changed in two thousand as we know and the well grounded claim went away forever and today now he just has to show new material evidence to reopen and we can't forget that's where we are under the under the regulation three one five six