a cork and a carpenter appearing on behalf of mr patrick buckley mr buckley appeals the decision of the veterans court in which this court has previously interpreted the provisions of thirty eight c f r three point one five six to specifically require a determination by the v a concerning whether or not a submission which has been filed during a period in which the matter is on appeal constitutes new material evidence relating to the pending fla in this case no such explicit determination was made instead the veterans court mistakenly relied upon a reference which was made to the existence of that evidence which appeared in a march two thousand and seven state of the case that the evidence at issue a june two thousand and sixty eight medical record had in fact been considered such notation however of the existence of such a record does not constitute the required termination evidence when the issue before the v a at that time was merely the question of the schedule or rating in this case the new material evidence addressed the entitlement to an extra schedule or rating based upon the veterans unemployability they considered that evidence in a statement of the case which identified as the single issue the scheduler rating in excess of fifty percent it did not address the question of experts kegel rated and when the board finally made her giving when the v a finally made a determination it wasn't until two thousand and nine and they decided that the effective date would be the date of that submission under three point one five six b a veteran is entitle to a specific determination that the v a s receipt of that evidence can in fact be determined to have been doing material and that it relates back to the original claim in this case we have a claim that has two that evidence which was received did or was or was not new and material evidence and did or did not relate back to the date of the original play contrary to the conclusion made the board in its decision that the april two thousand and six rating decision was not required to make that terminations those determinations are dependent and required by the provisions of three point one five six b as interpreted by this court in bonn the distinction relied upon by the veterans court concerning what looks the most recent board decision which is the one didn't follow the procedure that is mandated by the regulation house that because the regulation requires to focus on whether or not the evidence that was received constituted a new and material evidence at the time in which it was received the only issue was schedule or the question then becomes whether or not the evidence that was received with the submission of his notice of disagreement that specifically addressed unemployed ability and raised the additional want them to do the regulation does not require evidence back to that regulation requires a determination as to whether or not the evidence that showed he was on employable in june of two thousand and six raised the reasonable possibility that that employability status related back to the date of the filing of his original claim what they're asking the veteran to do is to produce additional evidence in me that it was absolutely clear that the board did consider this evidence in terms of asking and asked about the evidence  then we would award the benefits as of that date but we don't find that bad evidence establishes that we find that the evidence establishes only the complete unemployability as of this later date and so that's the date the morning will take effect and it said all of that but it also said we don't think that this is new evidence is there something wrong with that as to new make new and material evidence but simply failing to recognise or declare that it actually is new mistakenly thinking it was all what had they done that that would have allowed the veteran to attack that finding that finding that in your hypothetical that the evidence was not known clearly the evidence what was what consequence would flow from from from an answer to the question it was new it was not new assuming it was fully considered for for the relative purpose what it has to do with it in this court's decision in jennings versus mansfield it said that any interi submission before the finality has to be considered as part of the original claim divide taking it in the manner in which you have described it you're using the downstream determination  affected date to look backwards as opposed to looking as i believe three point one five six b requires for you to look forward and to consider it in this case unemployability was not raised until the notice of disagreement and it was specifically raised by the evidence subsequently a formal request under a v a form for that determination was submitted as part of the record and then in two thousand and nine it was granted but it was granted back to the date of receipt date of recede suggests that the v a was treating this as a new claim because it was in based upon i guess i'm sure trying trying to understand whe you have an argument and if so how could the argument is that the simple failure to recognize that the evidence was needed for this state the evidence was new it self of basis for error even if the board did everything with that arrogance that it would have done had it recognize it to be and the answer to that is in the affirmative that is correct that it would be an error under this in the court's interpretation and bond and this court's interpretation in jennings of how three point one five six b operates it imposes a mandatory requirement on the v a to treat that evidence in a specific way and it was not treated in that specific way by the board in this case and when the veterans court tried to make a distinction here between whether this was or wasn't treated as a new claim is equally immaterial three point one five six b mandates a specific operation and that operation or set of determination made it was simply treating it as a downstream issue to determine the effective date to be assigned as opposed to considering it as part of the original pill i don't think it's fair to say  i'm not sure that it is i said that by inference you could make that suggestion i don't believe they treated it as a new claim i didn't mean to suggest that i can fact i believe that they simply disregarded the provisions of three point one five six b when they made their determination and that they treated this as an effective date matter as opposed to a matter as part of the original consideration of the original claim which is what is mandated by three point one five six and in terms of identifying a error of legal interpretation i guess i have read the veterans court opinion as to how however correct th characterization of what the board did as saying we don't think three point one five six b was highlighted because in our view the record of proceeding reflects that the evidence was considered as having been filed in connection error of legal interpretation about the meaning of the rule by the veteran school well i believe that it is in the conclusion that aid the determination required by three point one five six b in terms of the determination as to whether or not the evidence is new and material can be innovated that is mandated by this court's interpretation under bond and i believe is clearly mandated by the case did not treat this as a new colonial and that is simply incorrect as a matter of law rely upon a misinterpretation of three point one five six b that a new claim is required in order to trigger those pro considered the at the april the to june two thousand and six treatment update in terms of in connection with the original claim which was in august two thousand and five and i direct your attention your honour's joint joint appendix pages one eight hundred two one twenty without the board or the or whatever identifies new material evidence that the proceeding is reopened so that additional submissions can be made isn't there a procedural hunsaker one to identify material evidence and receipt that the consequence of that was not simply that the board would consider the heavens which was characterizes new and serial but that there were procedural instance reading three point one five six be it says new immaturely evidence received prior to the expiration of the appeal period or during the appellate determination will be considered as having been can silden connection with the claim the new material evidence would not have happened however your honor because the evidence was submitted in june of two thousand and six i know your honor said forget this case but i'm focused on this case because in this instance we believe that there is work properly interpreted three point one five six p as applied to the facts in they did look at all the evidence in the record your honor that some joint appendix page one one eight they considered all of the evidence in the record what they did do in terms of three point one five six however if they discussed the right case and they said specifically with respect to they were true to what rights case requires when the evidence of one employee bill you submitted at the same time the veteran is appealing the initial rating i'm quoting the rate the claim for t d i you will be considered part and parcel of the claim for benefits that's what we have here is a claim for t d i you in the question is was it considered properly in treatment update the word finds that a t d i claim was recently raised by the evidence of record and that that since june two thousand and six evidence is part and parcel of his august two thousand and five claim of entitlement so pursuant to a three point one five six there's no no that based on that the v a is not required to reopen reopen all of the all of the getting additional evidence based on that in this instance they're not on the three point one five sixty because the evidence in this instance is the june treatment update which was properly considered and then prospectively considered he considered the board considered this evidence in terms of the original claim which was august two thousand and five yes or no magic words to say that it was doing material evidence but it was considered and then then the board asked ok so now we have the august two thousand and five original date and we've got this the most recent and the most the first evidence we find in the record is june two thousand and six so that's that's the first evidence of record or in the veterans ability to retain or maintain employment as ascertain the board in this case did comport with three point one five six b as the veterans court pointed it's not of that wasn't reopening the case at all it was the original aug twenty fourth two thousand and five claim that was continued onwards over time so it's not reopening the claim it's different your honor and what the board did is properly considered information with respect to the original claim that are in the court pointed out that even though the board did not specifically discuss the it's like ability of three point one five six in essence it was harmless error because the veterans receive the benefit of having that june thirtieth treatment update considered in connection with the pending claims if they're in one question jonas for the reason for the reason set forth in our brief and stated here today we respectfully request that the court affirm the decision of veterans court love thank you thank you decision is issue number four the other three issues having been remembered was the effective date prior to october twenty three two thousand and eight for the grant of individual unemployability and no earlier for the grant of t d i you have been met and the regulations that they cite are three point one five seven four points give me three point four zero zero and four one six they do not cite for one six b because they were treating this as a downstream issue of effective date and looking at this only in terms of entitlement to an effective date for the grant in the one year prior under the provisions o three point four zero zero three point one five six b requires a different procedure and has in judge cites for its procedural consequence the procedural consequences are that they must make the examination of whether or not the evidence is or is not new and material and whether or not as new and material evidence it relates back to the original claim which it clearly does because it were raisin and then it would be necessary for them to determine that since it is new immaterial evidence for the initial assignment of the rating should the rating be different on an extra schedule or basis based upon this  on not sure i know what you mean by that would have been satisfactory but i suppose that would have been compliant but but the but the fact is the way that they had then a fight the issue they were looking back rather than looking forward three point one five six b requires them to look forward in terms of the treatment of the evidence as part of the original claim they are now treating this as the issue of the effective date for the