you see your blue green you made an argument that it was pertinent that you win in this case because there was an a rating decision in june not the correct date of the rating decision as didn't cause me to have to admit the whole record right because you had a legitimate argument based on the fact that there was a gene reading this week and it was your leader arguing on page nine very soon as in october eight october twenty eighth two thousand and two grading decision that began to depend thirty at appendix thirty one and it notes that on september sixteenth two thousand and two the v a had requested additional information and specifically it were quested a complete detailed description of the specific dramatic dramatic incident and you had better way to understand right if it wasn't until many years later that mr lloyd mentioned was it is there on the assumption that the new one fifty sixty two doesn't actually apply to this case because that would make it retroactive and at least the veterans court did not think it was retroactive in this case i gather more recently it seems to have done just the opposite but in this case it did and the question is whether the regulations in place putting aside the amendment to one fifty six two more such as to allow the v a can say if we've got new service records that change our assessment you it doesn't come in within the come within the exception to do backdating the opening claim where the reason we didn't get them before was that you didn't answer a question to give us the information that was necessary for us to go gather the government's argument is ignoring that nevertheless under the preexisting one fifty six row that exception doesn't apply didn't apply maybe because of one fifty nine  to cooperate i think that's the principle basis but it can explain this more nevertheless you don't get the benefit of this special exception to the back aging rule if the reason that we couldn't get those service records is that we had no idea what to ask for because you didn't give us the information ones that were wrong well at this case i believe is a perfect example you are the v a collected some of the veteran service records but they didn't collect all of the veteran service records the veteran service records that they collected but then didn't give it to understand this right i thought by the new service record yes that made a difference were they did know in october of two thousand and two that they should even look for those records are not going to record specific to him just you tell us where you were at this time then we can figure out what was happening there that well you know i'm not sure it's quite as simple as that this has to do with whether or not there was a basis to corroborate the stress or that is a provision under three point three zero four that provision was not considered by the v a and its decision in two thousand and two all the v a considered in two thousand and two was whether or not mr lloyd was or wasn't a combat veteran and said based upon your service record you were not in combat your medals record so i don't see how they're inconsistent well i believe they're inconsistent your honor because three point one five six seat was created as a remedy as a remedial regulation that when the v failed to do something specifically related to the collection of service department records where the information was in the service department records that would have substantiated the claim that i may ask the question ok maybe there's an alternative here maybe there is not a duty i think that's reasonable doubt it frankly it did not occur to me to look at it quite through that prism but i think looking at it from that perspective if you're going to rely upon that alternative theory then there has to be a decision about those facts in the first instance and i do not believe that there was any such as a practitioner in this area i was unaware under the prior version that there were these policies these policies did not were not clarified until two thousand and five when the v a published and explained that it needed to if you will think or with the wording and substantially expand this regulation in the multiple subsections so that the wording of the intent was clear and what seems to be clear from that intent is that they wish this to be a remedial action that if the veteran  a rule for reopening work or something like that is that these records were already in the possession of the government properly defined and that if you call that then they somehow should have gotten them and so that the remedy is ok you can come back date your claim but if you're in a circumstance where it can't meaningfully be said that the v a failed to find something because you know there was just go find a needle in a haystack instruction despite a request for identification of the of the stressor that comes feel like a failure to me or remedy for a was putting into words in the code in c f r something that already pretty much existed or whether it was changing a pre existing  provision that was was to that or unfriendly by giving the benefit of backdating even if it was the veterans fault for the offender to find where they leave not a finding of the earlier records is there it fortunately it doesn't identify what those longstanding rules were and particularly when you compare it to the language of the prior version for example in the prior version it said either before or after the decision  toronto it is critical to understand that you don't get an earlier effective date you merely get the reconsideration of your original claim which means that it has to be adjudicated has to be decided a new based upon what is now in the record and that then goes to judge clevenger point about the question of diagnosis and the question of the v a s duty to assist in developing evidence about that diagnosis one of the criticisms in this case is is that no examination was ordered the v a made no effort to determine whether or not at the time of the two thousand and two decision mister  duty to assist change that's not mean pitched as a failure of a secretary's you know but the secretary's hail mary at the end of their brief for a harmless error claim is not supported by the fact that what you do under this regulation is you reconsider the original claim you consider it a new based upon evidence that is now in the records which could include presenting evidence for a retrospective about your way sion to determine whether or not the better did or did not have symptoms and manifestations of post traumatic stress disorder at the time of his original claim up until the current effective enact evidence of his symptoms a manifestation between the date of his claim and i believe it's july of two thousand and two and the date of his current affective date that establishment of the relationship of the stressor to the p p s b has already been conceded by the government in its two thousand and seven i believe decision in which they may be granted based upon the supplemental service department records concerning the rocket and mortar attacks at be and not benefit from his repeated failures to participate in the claims process as the various corps correctly held mr lloyd as the claimant had a responsibility to present and support its claim under thirty eight that claim is final and there was no appeal any kind of you just this argument should have been raised then because it was not has been waived but second the regulations specifically provide that the veteran is supposed to identify the stressor was not retroactive he doesn't need to raise there again you could have argued in response that the judgment should be that the judge in the veterans court is correct though not on the grounds that the veterans court stated namely you could have said one fifty sixty two really is retroactive arguably yes your honor we could have done that the various courts pacifically noted in its opinion that mr carr mr away with an arguing about the retroactivity of the stature and so it didn't of the regulation and so regardless that the court didn't doing new fact trying various thing like that in order to reach this alternative round they require rely on the same facts which is very simply that mr lloyd did not identify or stresser until two thousand and eight so therefore  claim he always had an obligation to identify the stress he failed to do that until two thousand and eight so even if this case was sent back even if he got the medical exam even if the doctor then said yes the mr white had he it arguably could go back to two thousand and two the result the ultimate outcome of this case the effective date he wants back to two thousand to would not happen because the effective date is the later the date the yes but he started claim to stress or until two thousand and eight and that is one of the elements of the p t s d service connected p t s d you saying was not claimed in two thousand and two he claims that he had p t s d he didn't identify that stressor and that is one of the consequences of that service the question which arises in fact whether this isn't after it comes out with child apparently the  that certainly was all over the press and everything else where the burdens live now that we are eventually crossed a lot of bridges determined that there was indeed there is indeed  actions and this is winner's troubling when there was in fact it was brought to the reader's attention in two thousand and two that there are problems to be resolved takes a long time to resolve two thousand and two with the tell the letter is going to straighten what is strasser was what event in the service is causing him to have flashbacks or symptoms of p t s d he didn't do that the veterans administration repeatedly told him in fact he needed to do that is obligation under three point three zero four am and are there three point one five nine see the cinema letter he filed his claim in june two thousand and two they sent him a letter september two thousand to saying if final again the regional office said you need to give us the information about your stress that he did not do that again in two thousand and six when he filed his first application to reopen the claim and actually have the diagnosis for p t personal thing one person's experience being subject to rocket mortar attacks may give them p t s d another person might be totally fine that's why v a needs someone needs the veteran to come in for and say what the stressor is in the vehicle to seems to me that the problem for the government is and the problem with that decision below is the lack of a forty in any statute or any regulation for sanctioning for the failure to provide this information that now exists prospero actively in three point one five six c two it did not exist in two thousand and two the veterans court tried to do a work around and consideration of that original claim that is the clear longstanding policy of the v a in the creation of three point one five six eight to permit reconsideration when there are service department records that are recovered later that permit in a war and it allows for reconsideration which then triggers a new the duty to assess what the v a has done what the court below did was to say you don't get the duty to assist here because you didn't substantiate your claim we're not arguing that he substantiated his claim in two thousand and two he substantiated his claim in two thousand and seven and was granted the benefit this regulation then provides for a mechanism for the reconsideration of the original claim for those veterans going for they are going to have to provide that information or they don't get reconsideration for the hundreds if not thousands of veterans who didn't know they had an obligation it is painfully unreasonable to impose retroactively such a sanction without express authority the government offered you know with already for a sanction there is no sanction authority in the statute there is no case no your honor because at that time the v a correctly denies not because they didn't have the information to substantiate what let's look at what the regulation and that regulation could have been applied but was not only the combat status was considered in two thousand and two three point three zero four f was not considered if there was an examination what would the examiners first question have been why do you think you have p t s d what happened in the service and where did it happen and if the examiner wrote down while i was at then walk during these rocket mortar attacks and he explained that then not what he was made the request but during the v a examination that's part of the v a s duty to assist that then is recorded in the record but we're not talking about the original we're talking about a reconsideration of that original claim based upon the v a s receipt of service department records the facts are not in dispute here the v a got service records after the denials in two thousand and two and two thousand and five when they got the records in two thousand and seven they ultimately made the award this is a regulation that is calculated to assist in getting an opportunity to demonstrate an effective date from the date of the original claim and that's what mr lloyd was deprived of he was deprived of that by the board because they use their from the bottom line carries over we requested medical evidence showing treatment for p t s d along with a complete detail description of the specific traumatic incidents which office did not find the well there was no response to that were qwest that is correct that it isn't that the problem no your honor because there was no requirement to do that under the provisions of three point one five six c as it existed in two thousand and two mal amended regulation says if you fail to provide that then you will not get reconsideration of your claim at a later date then you're right mr lawyer would have a regulation that didn't require him to give no penalty provision in that it is who wasn't harmed what was the purpose of three point one to allow the denial of a claim your honor and that's what happened in two thousand and two they deny the claim trying and then they denied the claim they later granted the claim and this regulation then three point one five six c comes into play because when you get in later grant based upon the v a s later receipt of service department records you are given an opportunity for reconsideration and there it was at that time in two thousand and two no sanction provision in three point one five six see anymore that there was a three point one five nine and two imposed after the fact a sanction provision that precludes the operation of this regulation is totally inconsistent with what is supposed to be a veteran friendly circumstance the government concedes that post traumatic stress disorder is a severe psychiatric disability we are talking about a person who was ultimately granted the benefit and granted a total rating because he was totally disabled from that condition one of the symptoms of post traumatic stress disorder is amnesia the inability to recall and now we're going to penalize the veteran for the very psychiatrically disabled person is that any but i mean is there any any evidence that he couldn't have responded to the september request for information september two thousand known or not but what i'm suggesting is is that we have focused on what happens in the adjudication of a claim as a justification for denial and transplanted that onto the provisions of this regulation that didn't have a sanction for a vision that precluded the right to reconsideration the mandatory language of the prior version of three point one five six he said shall it was mandatory and not permissive the d h l reconsider which is now what c one says in the current version and it's the interplay between c one and see two that allows for  one not to be operative but those provisions didn't exist in either three point one five six c in two thousand and two or exist in three point one five not now clearly had the facts be had the regulation been in place and his original application had been made after this regulation went into effect then he's clearly out of luck the question in this case is why is this which there was no discussion by the board and no fact finding body or do you do you have any sense how many veterans claims the current n acquisition of the service records at that time was the result of insufficient cooperation this is a substantial part of my practice i've worked predominantly with psychiatrically disabled predominately with post traumatic stress disorder up until the time of the amendment to three point one five sixty reconsideration was not be when they amended it it started to be afforded but then in affording it they had this escape clause and there are tens of thousands of veterans who are affected by this that are still in a position in which they have cases that would have entitle them to at least a reconsideration of their original plan not necessarily a guaranteed that they would be awarded the effective date of their original claim but the opportunity now proposing by the decision in this case to punish them because they didn't understand the law that can't possibly be the intent of this regulation depends doesn't it mr kirkman or on whether or not the government is correct on the c b c is correct is that there was a creative existing penalty for not doing what you're going to do here and the only way that that alternative ground can be viable is if this case is remanded to give the board an opportunity to address that issue well it just seemed to me i mean i could smell right away that there were lots and lots of cases that were like this and it seemed odd to me that we would be putting in a position where we would be asked to