nine seven zero two three zero more the secretary of veterans affairs the court below erroneous leave relied upon a concurring opinion in the serious case below in which the court affirmed the board's decision by concluding that mr buell moore suggested regulatory revision would be inconsistent with section fifty one ten a which prohibits an effective date for they reopen claim earlier than the date of the claim to reopen the problem with that your honor is that that concurring opinion by judge steinberg did not address the fact that three point one five seven b was an interpretation by the v a that statute thirty eight u s c fifty one and fifty one ten a is effective date statute and this regulation creates an exception to the language that was referred to by judge steinberg in the question of whether it was inconsistent with the language of fifty one and they about reopen claims reopen claims generally are not allowed an effective date earlier than the date of the claim to reopen however this regulation recognizes that when there are v a medical records which which are created after an initial denial and there has been a subsequent award of service connection that under the plain language of this regulation it applies both the claims for increases and claims to reopen the title of this regulation a three point one five seven b is give me three point one five seven is that it applies both to claims for inquiries and claims to reopen in subsection a it expressly refers to claims for increase and claims to reopen the problem is created when there is language used in an alternative explanation in three point one five seven b which refers to a formal claim for compensation which has been disallowed based upon a service connected disability which is not compensable that however your honour's is not a claim to reopen notwithstanding the fact that the regulation uses that phraseology when a claim has been granted at a come not an compensable rating you do not reopen the claim you determine that there is in the title meant to an increase compensation and so that portion of the question dealing with the increased portion of this regulation not reopening and more importantly it is a claim in mixi that with a three point three one ten claim for secondary compensation the holding in mixi was is that you could not apply three point one five seven to a claim for secondary compensation if secondary compensation had never been granted in the first instance that council i case case was previously found to be service connected it is not until his claim is service connected in as a result of his two thousand and two claim that he is able to take advantage of three point one five seven b that is the first phrase that describes once a claim for compensation has been allowed that's what happened here this is the application of fifty one and a in the context of reopening a claim that has been previously denied by use of the narrow exception of i'm maybe i'm just missing something so it you saying them it feel lies because the date of which we determine whether or not there was a service connection is not the date that you're alleging this informal claim was filed but the more recent service the next that's correct around and that that is the precise language of three point one five seven b when in its first phrase it describes once a formal claim for compensation has been allowed and that's what happened here there has been an allowance of a formal claim for compensation and that and then it goes on to describe when you are able to use an informal claim to establish an earlier effective say well i mean i think others have assumed that right that reading the regulation means title and in a makes no sense unless you're reading this regulation in that context because if that were the case by the very nature of it being a reopened claim this regulation could never appl reopen language is kind of a misnomer and comes from an older process i mean up to know your are that that reference is limited to the second prey's which is a claim for compensation this disallow of art when you reopen something that has been previously decide the language of who gets can i go back just before your time concept to the point you were making so you're reading on the timeframe here you're saying if you get service connection ten years after you've gotten this medical exam but since you have service connection so at the time you get service connection you're allowed to go back yes and say but the language of the regulation says it something is accepted as informal claim at the top like you would say the informal claim was filed in one thousand nine hundred eighty nine right right yes yes so it either was going to be accepted as an informal claim in one nine hundred eighty regulation you can't you don't apply effective date until there's a grant of the benefit of the benefit was not granted until the two thousand and two claim was eventually favorably adjudicated and they gave the effective date as of the date of that reopening you can't fight you can't use the one nine hundred eighty nine informal claim until you have the event which is the formal claim for compensation has been a while and see only way that you can read reopening to make sense they the v a when they wrote this regulation clearly intended it to apply to two types of circumstance claim for increase and a claim to reopen and now they're trying to disavow that applies to reopening because as the court said below  there's confusing language here in b but there's no confusing language in the title or in a way it refers to reopen so you have to this regulation must be read to effectuate the regulatory intent which is to program it the very special circumstance of allowing an earlier effective date based upon a v a medical record the facts of this case war that in one thousand nine hundred two the doctor said that the v a examiner said that mr gilmore did not have post traumatic stress disorder in one thousand eighty nine a v a doctor said he did mr gilmore did not know that he could submit that as new material evidence or obviously he would have that didn't happen until two thousand and two when he submitted his claim to reopen this is a protective regulation that permits the veteran to get an earlier effective date not withstanding the fact that he would normally be excluded from that if you're relying upon the medical records which creates such an informal play and this case you this panel does not have to decide how it is to be applied but merely that it must be applied mr gilmore argued below that the board urged by not considering applying it the court below said they didn't have to that is legally incorrect i see them just  mcphee the fact that the claim here is of a different nature makes no difference because the question is whether the claim has already been service connected and we know our senate has not yet been responding just briefly to what i think is a new argument raised by mr gilmore and this morning under this new reading section one fifty seven b would make absolutely no sense and i think that the reading puts the cart before the horse that regulation states that once a formal claim for compensation has been allowed and i'm skipping a little bit down receipt of one of the following will be accepted as an informal claim for increase or an informal claim to reopen once mr gilmore's claim was allowed in two thousand and two he received the compensation that he was looking for he receives the disability rating excuse me that he was looking  for there when there's no more increase than he can get that he can get the through the reading makes absolutely no sense except in a very let me just explore that with you if you as i understand what mr carpenter is proposing is the reading i if it were to accept such a thing retroactively it would plainly violate the statute and i think that's where the reading gets into trouble the effective date for a claim to reopen according to the statute h to be no earlier that it has to be the date of the claim and receipt of the claim where the date of the of the evidence no whichever is later so i don't think that he can get around that  and i think that the read his his reading of the regulation can't get around the effective date set you can't get around the statute regarding finality and it can't get around the statute regarding what a claim has to be a claim has to be specific the regulations that and define that to mean that it has to identify the benefit sought and medical examination freestanding absent service connection identifies no benefit sought and when when viewed in that light it puts the regulation into context if you view this regulation as applying only to claims for increase in other words applying to claims that that exists as a result of service connection already having been established then the whole regulation makes sense regardless of the anachronisms that may be present with regard to the use of the word reopen the well the title says no more than what's already and b in it uses the term reopen and we've conceded that the term reopened over the past forty years has meant a variety of things so i don't think that there's anything there's anything more troubling about the use of the word reopened in the title than there is in the use of reopen in b as for anyway there's nothing troubling in a whatsoever i mean a set up the parameters under which the regulation is going to be effective and the regulation is not going to be effective unless the application meets the requirements that's what a says it has to meet the requirements set forth  granted service connection but we've been given a zero percent rating and we have neither of those create prerequisites here so i mean even if mr gilmore simply could have his interpretation  and there's no way to read it without assigning and effective date prior to the date of the claim and fifty one ten says that the effective date is either the date of the claim or the date of in total in whichever later now whatever is earlier what how would you like us to interpret the word reopen in the i think the only way that you can interpret the word reopen and give meaning to the entire regulation is to recognize that reopened at the time that the regulation was written meant a variety of things including a claim a sorry including a decision that not what it means now but that is a way to give meaning to that word and in the in the sentence i don't think that the court needs to get there and the reason is because mr gilmore doesn't that's correct that's correct and i mean if there's any carper in about that if you can go to the end of section b one where it clarifies that the provisions of this paragraph apply only when such report relate to examination or treatment of a disability for which service connection has been granted so it works in tandem  and really the regular there are two outcomes to this there are three outcomes to this case first you can obviously affirm what the the the veterans court judgment there are two other interpretations that you can give it you can give it the interpretation that mr gilmore suggests which would plainly violate the statute or you could say that the regulation makes no sense at all that would be taking away what is right now a particularly generous provision for veterans absent this regulation a veteran who wants to make a claim for increase now has to file an actual claim and can't just submit a medical examination report and use that as a claim and that would be a particularly unfortunate result of the veteran's administration has another option which we don't have right which is least with respect to the decision found nothing confusing about it for purposes of the question of whether a and claim that is not in service connected falls with then the parameters of the regulation that the decision on effective day in four categories which includes increase and reopening will basically based upon the facts found and the facts found in this case are that there were relevant v a medical records that were considered in the timeframe from one thousand nine hundred two to two thousand and two this regulation requires consideration for that the comparison to that is the preceding regulation at three point one five six c for the use of supplemental service department records which this court acknowledged in its serious opinion was an exception to the finality and was consistent with the secretary's regulatory authority to interpret the statute to create an exception when there were service department records considered at the time of the original decision and in this case where there were subsequent v a medical records now w the v a is really asking you to do is to accept this vague notion of reopening means of variety of things but frankly on our reopening meaning of variety of things means reopening means nothing because if you find as has been heard by the government that reopening means a variety of things then reopening doesn't mean what it means and fifty want to wait and it doesn't mean what what happened to mr gilmore case that he successfully reopened and then is permitted to rely upon the a medical records that were in the possession of the v a to support an earlier affected day that's to go back to may have been  followed to judge mares tom it's still unclear how you reconcile this with fifty one tax which says it's not the earlier than the date of the receipt of the application and the regs say date of entitlement is the date of receipt of the claim or the date of entitlement whichever is later and seems like you're going to petition of this read would blow a big hole into that no your honor because this regulation expressly provides that the date of the claim shall be under this regulation the date of the v what will your honor i think it has to be interpreted in the context of affective day only after there is an award because this is the interpretation of fifty one and a that statute that deals with effective date as interpreted by the viet and that interpretation no matter how confusing and otherwise but will during includes reopening it include three up with what the government is asking you to do is read out reopening unstead of reopening means a variety of things the translation is reopening means nothing and that and as i thought i heard the government say this regulation really only applies to increase quite and this regulation doesn't just apply the increase claims it applies to claims to reopen and in order to do that you have to accept the government's notion that a variety of things a variety of meanings for reopening does not include precisely what happened here which is that there was a grant as was contemplated there was an allowance and then there were v a medical records that would be a lot would be allowed would be permitted under this regulation to be considered for the purposes of the signing  time they were created as of the time they were created as contemplated by the plain language of the regulation thank you very much