panel has a florida total of five cases if we were dealing with those that are being submitted i want to thank on behalf of our entire court district judge potts birds from the district of new jersey she sat with a panel yesterday and she's with us again today just she appears as a part of our ongoing program of having selected district judges from around the country sit with us on regular panels we've been doing that since september of two thousand and six and have her colleagues booked one might say for about a year in advance of today so thank you for your service and your  appearance we're going to hear argument in three cases as the list discloses but the other two cases will be submitted on the briefs without argument later today they are specifically appeal two thousand and seven dash seventy two sixty seven brown versus department of veterans affairs and appeal two thousand and eight dash thirty seventy two gross clothes versus department of the navy will hear arguments first this morning in appeal two thousand and seven seventy two sixty five have to admit i was utterly confused by some of the scenario here and the history of what happened the he when this claim is about his fit their failure to award him t d i you benefits write the employability is that what you're seeing i mean claim i guess that was confusing to me because if you just take the to the eye you claim on its own it was never awarded so i was unclear on why we're talking about an effective date of something that was i mean the thing to me first you have to get the he's entitled to an earlier effective date correct for a claim that would be greater than the one he received because it would conclude some extra money for the t d i you that's right the difference between the fifty percent rating  him the fifty percent on other grounds you're saying he should have gotten one hundred percent back at the time based on earth additional grounds of an employee ability well actually the v a examination was part of a supplemental assertion on the part of  disability came not only for major depressive disorder which is what he was service connected for but also for post traumatic stress disorder that examination was undertaken for the purpose of determining whether he had post traumatic stress disorder and whether that was  was not related during the course of the examination the doctor concluded affirmatively that there was a relationship with of to address order but also stated that taking into consideration both his which is a usual v a regulation which basically puts the burden on the v a to examine its own medical records to determine whether there may or may not be and informal claims for increased opposition so what you're arguing about and what you want is for either the r o or the board i mean you want to see manda back to the are out i want it we made it back because your argument is that the our own never looked at this but the reason i'm confused is that in the are awaiting topic that in the board's march two thousand and five opinion it found as a finding of fact that prior to the july thirteenth two thousand report there was no i did you did katie's claim whether it was informal or formal for disability regulation requiring the v a to adjudicate from v a medical records is not for the board to do that the board did make that filing a fact that is correct the question then the question that was presented below was whether or not the board had in fact failed to consider and apply this particular regulation which required the v a to do that but always when you see the v a why should we not consider the board as much a part of the veterans department as the regional office because the board runner is an appellate body that reviews decisions of the v a the v a but it is it is it not the case that the board can consider additional evidence that was not before the r o and can even have the veterans come in and testify live yes that's for real in some ways it's a analogous to an appellate court but in other ways it's like a trial court that can expand on the evidence and to make findings which ordinarily true appellate courts cannot that's actually correct because of those characteristics why shouldn't we consider the board of part of the v a and therefore we could conclude that whiting the opportunity to appeal that decision and submit additional evidence on that question that would have been a final decision that would have been subject to review by the court i'm left following are you saying that he subject to a notice of this agreement an opportunity to submit additional evidence to show why there was a boy bill once that decision is made by you represented him it's a poor do you know all the strategic considerations that you are utilizing now i don't understand how you are precluded before the board from presenting anything and everything you needed to present to support your claim it's not that's not the question on the question is whether or not how three point one five seven b one operates does it operate to allow for an adjudication by the v a in the first instance or is you're suggesting can the board do that i'm suggesting that that is not appropriate to have the board  do it in the first instance because it deprives the benefit to the veteran of the opportunity of the even if you're right i mean let's assume you're correct and i'm not following clearly but let's assume that what i don't understand and i must be missing something is under three point three to one b while that is an extra scheduler rating when the rate instead of does not of allowed for a rating that would be appropriate for the degree of disability is not a claim for unemployment below the under three point three four zero but it talks about what such related factors as mark interference with employment and it talks about women the first to the fact that you know problems difficulty with the job so i guess i have a hard time reading this and not concluding that be our own did consider the informal claims of unemployability aren't what they considered was a extra scheduler rating under a different regulation that regulation is for a very narrow and specific circumstances not for the circumstances of increase compensation based on employability other ploy ability is covered by to be a regulations at three point three four away at four one six this particular regulation deals with what they call an extra schedule rating that is different from an employee ability it has to do with a market interference with one and that may be less than an employee ability under a specific separate regulatory s what i i understand why there is that confusion but there should not be any confusion that the v a did not address it under the appropriate regulation but that is a separate issue under and that is an issue that the put decided before them that this decision was or was not handled correctly if you're correct if you're correct because you didn't have the specific applicable t you regulation and mine are of consideration of employment issues doesn't count as a p d f you decision then we look next that what the board did and saying to me the board essentially held that looking at the record before it and the same record essentially was before the r o that at p d i you claim wasn't made up now that you agree difference there is that they are making the ultimate decision on employee ability not the question that is raised by three point one five seventy one is is this an informal claim for increased compensation and if it is a claim for injuries compensation in this case either mr whiting was rated at fifty percent before this decision and he was rated fifty percent after this decision after they've added post traumatic stress disorder they essentially found that you know we're not we're not reviewing whether fifty percent should have been some other percent that's not true for us is not what the regulations require but they didn't tell me what the what if the regulations say regulation of the three point one five entitlement to increased compensation that's what three point one five seventy one calls for and that is what was not done by the v a either in the first instance in ninety ninety one and then the boys ordered him to do it in the that they considered i don't play ability what your complaint is that they didn't look at some extra schedule or rate increase and they looked at it under a very narrow program what's the difference in standards they would apply and of the narrow parameter versus the one you think they should have applied in assessing unemployability which they didn't that's according to you but under a different standard under the standard under three point three four zero the precise language is if a veterans service connected disability or disabilit prevent you from substantial gainful occupation then you are entitled to a total rate that's the one they you that's what they did not they did not matter which one did they is that they use three point three two one and what's the standard under three point three to one with respect to unemployment are kept and you are able other three point three to one to go over that cap but let's turn that there was a back disability where you couldn't get more than a forty percent rate that you could use three point three to  one find that there was a market interference with the employment and as a consequence you could raise it at sixty or seventy or eighty you don't have to go to harvard under three point three four zero it's a total rating or it's not so you you you're contending he lost his ability to seek a rating somewhere between fifty percent on a hundred percent he lost no he lost the right to consideration of this examination for the right for a total rating but the based the fact he could not work at that you said just concede it could have been given to him under they read their part under that particular regulation that's correct but they did not find that that was the basis that they simply repeated the procurator for the regulation in their finding what is required we believe under three point one five seven b one is an affirmative acknowledgement that p a medical record will be accepted as an informal claim for increased compensation and i'm simply saying to you that if the decision does not indicate that then there is no way for the veteran to know that that happened that siddharta part of the totality of his claim that started in ninety eight correct that's correct but all the for the purpose of aside determining whether he was entitled service connections or those dramatic stress disorder there is no mention in that decision about increasing the ratings and in fact they did not increase the rate and that mr carpenter you pointed us to some concluding paragraphs by the v a dr charles off a guard  age thirty three but if you read the whole report it seems to me it's it's quite confusing in ambivalence about the degree of employment problems for the for example on page twenty eight in the middle of the large paragraph and the center of page twenty eight it seems that he was successfully a pool employed and he wasn't fired because he couldn't perform  he left on his own because he preferred to work at home to could get some kind of computer work at home so if you read that in conjunction with the part that you cited it's it's not clear to me that the doctor is saying he's entirely unemployed it seems like it's a doctor's verifying his own statement that he is an employee of old was employed and left voluntarily it was on will not because he couldn't perform but  that is precisely the reason that three point one five seventy one has to be recognized as an affirmative obligation on the part of the regional office in the first instance to make that determination to decide whether this v a medical record was oh all right i would suppose suppose that you're correct that only the regional office can make that determination based on this august one thousand nine hundred nine examination that we've discussed but later when the board looks at what happened look to me in the board decision like the board was in effect saying well if it wasn't considered under the right standard that was harmless error because under the right standards he would have to lose anyway what's your response to that my response it is that they are going somewhere where they have no business go they should have or mandated the matter back to or are you saying that the veteran forward is prohibited from finding a certain assumed error to be harmless on the factual record in a case of the three point one five said the one where there is no adjudication that is correct the question before this court is the interpretation whether that regulates where is their authority saying that the harmless error power of the board is unavailable in the circumstance of this case well your honor there is no such authority this fall but i believe that of the correct interpretation of this regulation this is a regulation that puts an affirmative are on the v a whether there are lots of affirmative burdens on the v a in the failure to carry them out isn't prejudicial the board off insists and we normally a poll that and i'm labeling that harmless error the board didn't use that phraseology but it seems to me clear that prejudice is required before the full procedural or substantive entitle someone to release your honor i think you just described the ambiguity that exists in this record and if this record had been allowed to be adjudicated as an informal claim that mr whiting would have had the opportunity to come forward with evidence in order to clarify that ambiguity either by getting a doctor to clarify or by getting another medical opinion that's that this man was of a world are you saying are you saying that you were shocked and surprised by the board's reference to unemployment realty and if only you had known the board was going to talk about an employee billeted you would purposes of the question that the v a did have such an obligation and that only the r o could discharge the obligation and that they didn't discharge it and therefore there was an error but i'm saying nevertheless if the board correctly finds that the regulatory section what we would have for it was either clarification from the doctor or the examination or would have gotten another medical opinion that clarified that because of his now service connected disability he was unable to work from a time certain now up until june two thousand it did you did you seek reconsideration by the board on the grounds that you were caught by know was in the mix therefore we didn't present evidence on on that extraneous thing you just adjudicated you have to give us a chance to do that you have to reopen your proceedings i mean why shouldn't waiver come from i think th welcome back to our court please p application for benefits that the veteran often pro se writes a letter stating in some very lazy fashion a claim i have this injury has been with me since my time in the military and i need to be paid some benefits to compensate for for the injury and then the regional office has to assist the veteran in pulling together the records from various governmental sources and the aro will normally tell a veteran if you have any private records or medical or otherwise that are relevant you better bring them forth we'll get x y and z records but anything else you have to get and so a file is put together it starts out with just the one page letter from veterans saying i claim benefits because i have this injury and i'm disabled by the injury and it happened in service and so on and then the fi up through this sort of collaborative effort back and forth between the veteran and the officials at the r o in this case seems clear that none of that follow up developmental work kurt we just have this this one doctor's work with this a little bit because assume for the moment just for questions that we decided it did qualify as a t d i you claim then we've talked in our questions about how in some what worries me is not so much who the initial adjudicator is what worries me is how does the file of evidence get developed and if it doesn't start out in the r o it seems like there's a high danger that the eviden material will never be amassed never will never know whether he was actually totally unemployed warn us we have certain statements in the ninety nine doctor's report that suggest maybe yes certain other statements that suggest maybe you know we have no employment records we have no testimony from the veterans we have no testimony from supervisors and jobs held up whether you do it well or not do a well good employee bad and ploy indifferent we basically missing a lot of facts because it was it may be that the same document that states the claim contains some relevant evidence but not all the evidence what i'm worried about is what about the rest of the evidence that logically one would have expected to be part of a full say i'm injured i'm disabled pay me money you'd have to see some a little bit more than that whoever type of claim it is but but and you seem to be suggesting that the the veteran should be limited to the same evidence that's contained in the documents the partial evidence contained in the document that states the client that doesn't sound right that that may be the beginning of the file but it shouldn't necessarily be the end of the file and i understand mr carpent constitute some of it maybe not sufficient to win but sufficient to state the claim then the question seems to be well what about the opportunity to put in the rest of the evidence from employers from the veteran out which is what i think that senator webb is saying here was poor how did they get the evidence and quote his employers in the same paragraph that you were just reading from his employer stated that he left due to the lack of promotion opportunities how did that evidence get to the regional office did they take testimony that somebody right then did does he says state in that interview actually in the nine hundred ninety nine medical exam it says that he told so but what about the language on page thirty three of the medical exam that i think we were too early where the conclusion is that it's isn't true right  local regulations as mr way sorry i ask you a procedural question the board decision that we've been referring to parent me dated march first two thousand and five right begins on page seventy three of the a one judge decision i think this case and the theme at the court of veterans appeals a one judge decision not a decision of a pow i believe that permissible for or to make the determination in the first instance that the determination should have been made by the v a in the first instance and that the board should have recognized the existence of a z a medical record and then sent the matter back to the v a for a determination as to whether or not that be a medical record did arise to an informal place under three m what about the mr and cerise one of her making a decision when they're not making a decision what they were talking about there is the question of us active day and suggesting that they can make a determination within a determination without making the correct interpretation of the ultimate determination of the three point one five so what that determination is was that v a medical records an informal client nowhere in that two thousand and three decision did they say that the tooth that the ninety ninety nine b examination was not an informal plan they say that mr y did did not make a claim but the question here under three point one five seven b one is did this