to see you again and it's been a long time carpenter appearing on behalf of mr james kaiser the veterans court misinterpreted the term relevant as used in the provisions of thirty eight c f r three point one six c one by requiring that service department well it was i'm sorry are you did you mean one for the border before the veterans court before the veterans court raised the question of regulatory interpretation yes so you knew how to clearly know how to raise that but you didn't raise   and it was the court that adopted the view relied upon by the board that the term relevant required that the service records received relate to the prior decision or the original decision with respect i believe that we did present this argument and more importantly for the purposes of this court's jurisdiction it was the interpretation that was relied upon by the veterans court the veterans court specifically adopted the interpretation of the regulation as applied by the board of veterans appeals specifically that the term relevant precluded consideration of this regulation because the service records received did not relate back to the basis for the original denial that is a misinterpretation of this regulation there is none to the veterans court clearly relied upon an interpretation of this regulation that imposes an additional burden or requirement for the ip look at ability of this regulation specifically that the evidence must relate to the basis for the original denial there is you raise an interesting argument here before us and i think it's it's a very important one and one that that  that decision because it was relevant to that decision we get the material you have to go to a stress or effect from p t s d and how how is it how is it relevant found that the problem here was a personality disorder and not p t s d because the term relevant relates to the ultimate decision made by the v a to make to you more that they later received records that were received by the v a that in this case related to how would how does it change the award if the examiner found that mr kaiser had a personality disorder not to compete is the hardest material related to stretcher creating p t s d how does that change because your honor what is being reviewed is not the original decision or denial of what is being reconsidered is the original claim based upon the later award of service connection that is predicated in part upon relevant service records that show that this better and participated in combat and therefore when the v a accepted the di one is the v a s receipt of relevant service department records it puts no qualification on those records as needing to be related to the reasons for the denial this is a red herring your honor to focus on the basis for the original decision the basis for the original decision has nothing to do with the plain language of three point one five six zero isn't sort of evidence  original decision was based on the things that you say are you know your honor the basis for the v a s regulation three point one five six c is to cure an administrative deficiency that administrative to fish and c is not getting relevant service department records this is not a q case in which we're trying to determine whether a clear and unmistakable error was made in the original decision the determination here is merely was there an administrative deficiency in failing to get relevant service department records and that showing is not capable of dispute on this record these records came in and i believe two thousand and six two thousand and seven which was clearly having you had you had newly presented evidence that showed that he enlisted in the marine corps and then known in the corps would you make the same or no your honor because having simply been in the marine corps does not relate to the eventual award having been in the marine corps and participated in combat and then getting a diagnosis that was accepted by the v had a was the basis for not only the reopening but the grant and it is that grant that allows for the reconsideration of the original claim not the reconsideration of the original decision that it is simply a missed interpretation of this regulation to focus on the original decision there is nothing in three point one five six y that talks about reconsideration of the original decision you reconsider the veterans original claim and it is that claim that has to be reconsidered as a matter of law in this case because the requirements of three point one five sixty one are both mandatory and have been met they have been met because the v a got relevant service department records and to suggest that you can limit the term irrelevant by tying it to the decision or the reason for the decision is a clear and obvious misinterpretation of this regulation does it make a difference mr thought with any record can you say it says of course it because any record is not the standard the standard is a relevant service department record that has to be part of what makes the record relevant that the later decision that made the grammy rel part on that service department record and it clearly did here because the decision itself acknowledged it and the board itself in the decision on appeal acknowledge that this record was considered by the v a as relevant to the determination to make the grant i thought the key thing was there was it was there a second psychiatric report or psychological study that came in zero six that's correct and that was the thing that seemed to be that that was the the turning point so to speak in the case in that a lot of credence was given to that yes because the original diagnosis that was in the record in one nine hundred eighty three at the time that the v a made its decision to deny that relied upon its own examiner who found personality disorder there was an existing diagnosis that said that mr kaiser psychiatric symptomatic pap patterns have been associated with a diagnosis of post traumatic stress disorder and cited to the a p or a p a provisions of the d s m for that diagnosis so to say that there was no diagnosis is simply inaccurate in the record but as it relates to this regulation this regulation turns on whether or not there was relevant service department records received and relied upon to make the later great i think you'd have an argument if in one thousand nine hundred two for example a medical examiner would have said i find because there's no stressor in the record no evidence of the stressor and but i do find a personality disorder but that's not what happened but with respect to i don't that's why we talk about relevant nt but the regulation uses a term the yes and the relevant c is in relationship to the grant to the award that is made in this case in two thousand and seven when the grant was made in two thousand and seven and it relied upon relevant service department records for the two predicates that were necessary a diagnosis of post traumatic stress disorder and in the event in service that was  s in say an eighty two eighty three that period instead of what we have in the records say there weren't any official records but mr kaiser been able to find his superior officer that officer commanding officer come in and submitted the declaration affidavit and said yes he was in operation harvest we came under attack on these days he did this and that and so forth ok with that change the case because there you would have not an official government record you would have an after the fact sweeper a bike yes commanding officer and they were yes would you still be making the same arguments for now i could not make that argument because three point one five six c is predicated upon the v a s received of service department records that existed at the time of the original decision and had not been associated with that line of the service department record  did you know the test point would not be i concede in your hypothetical three point one five six c would not be available to mr kaiser three point one five six he is only available to mr kaiser because relevant if there had already been a statement by commanding officer in the eighty two eighty three time here is exactly spelling out what mr kaiser did and rejected at in the one nine hundred eighty but i find that he doesn't suffer from p t s d but rather has this as we know what was found a personality disorder in that scenario your honor again three point one five six c would not come into play erskin you would not be attacking the one nine hundred eighty three decision three point one five six c is not a collateral attack on the one nine hundred eighty three decision it is a  supportive helpful provision by the b a that is remedial in nature to remedy an administrative deficiency you read the regulatory history and it is replete with discussion that three point one five six c is predicated upon administrative decisions innocent deficiency here not getting those service department records they were available that existed in later on in a in a veteran's file and if you're able to say all of this relates back to the eighty two decision you need to reconsider my disability service connection d the provisions of three point one five six e entitle every veteran to reconsideration of a riginal claim when the v a did not fully develop the record and a fully developed one of the record under three point one five six  is predicated upon service records which exist and were not associated with claims file at the time and then were later relevant not relevant in one nine hundred eighty three as in this case but relevant in two thousand and because then what you're doing is you want to change the original the original diagnosis and headed step ahead the medical examiner said in eighty two that i find no p p s d because original stress or hear nothing that indicates that but i do find a personality disorder and then years later twenty years later you uncover evidence that that occurred over you know the middle so he got your own coverage information that was in this regulation when it uses the term irrelevant relate to the decision in this case in two thousand and seven or does it relate to the decision in one nine hundred eighty three that is the question that this panel must answer if it relates to two thousand and seven then there was a clear error of law in the interpretation relied upon by the veterans court if it relates to the one nine hundred eighty three decision which i believe would be incorrect then they interpretation relied upon by both the board and the bedrooms court should be affirmed but that is simply not the correct interpretation of this regulation i think away over my time but all right let's hear from th not harm the veteran and so the v a reconsider the a claim based on those records that is not what happened here and here is let me ask you one question or we  can only we don't have jurisdiction for matter wasn't determined by the court a lot and you argue in your brief that the government argues and brief that this whole issue wasn't argued or decided below but it really does seem to me and i've mentioned this to mr carpenter and he agreed that if you look at pages three through four of the appendix which is the court decision says the me that the issues that we're presented with here whether you agree with mr carpenter or disagree was presented below by the veterans court the veterans court basically said as i read it that this material that came in and out of seven wasn't relevant because the previous diagnosis had been a personality disorder not a determination that he had been exposed to a stress or so i don't see where there's a waiver and not waived or i'm seeing the court decided the issue it's where we before us your honor in it i don't want to spend too much time on the waiver point but if as you quoted the board did address the relevant issue where we contend there waiver is that on appeal to the veterans court that are in there then the better the court went along basically with what the board did so the veterans court basically followed the board said ok board got it right so isn't it before your with your argument you seem to really connect the the the term material as as and three point one five six and relevant and you mak depths of the definition of relevant in and it seems to me that your your interpretation corn side with my turkey on it has to be material to the one nine hundred eighty two decision in order to be relevant but doesn't the regulation itself separate the two terms the regulation does separate that you're on and if you look at the regulatory history the reason was because under reconsideration you can have an earlier you can have an effective date going back to the original plan whereas if you submit new material evidence to reopen the claim the effective data separately to date like that clip that you submitted i don't have an automatic yes but it's a later submitted there's they have information that was that was somewhere in the record but wasn't available for whatever reason back in one thousand nine hundred two it's information that's relevant in that piece p t s d was raised don't you just have to show that there's there is the new information had they presented it in one thousand nine hundred two the examiner would have taken that information and used it as the question is whether it's relevant i think you're on a relevance is has to be defined in context you can make the argument that anything related to operation harvest moon was relevant but that does not i don't think that would be the right assist the veteran to put him in the same position he would have been had those records been available so for example if a record didn't get so the examiner or for record was classified and examiner couldn't access it at that time if it later becomes declassified or the agency finds that the veterans shouldn't be penalized because that record did not exist at the time his claim is valid but that's not the case here here there that same information essentially exists that if that was the issue the agency would have been under in operation harvest moon or in any other combat situation during the period you were vietnam you'd say we have a different case that's entirely correct your honor you can see the case in that case yes but that work the ultimate information for which any of this would be something so yes it would be cumulative but it also would be  they the issue was the lack of a medical diagnosis and just to correct something which mr governor says that there was no diagnosis to say that there was no diagnosis is it in accurate there is only one diagnosis  pointed out finding personality disorder no p t s d there was a letter from a counselor at a veteran center that suggested that mr kaiser has symptoms that have been associated with p t s d and based on that he was  had a medical exam and the medical examiner took that into account and took into account his testimony that being in operation harvest moon coming under an ambush scene casualties all of that was there the only thing that was lacking was a medical diagnosis a symptom and that was lacking in eighty three the other information lacking the symptoms the diagnosis based on the symptoms yes the medical examiner examined mr kaiser one hundred eighty three and concluded that the symptoms were not  exam that concluded that he had p t s d so it wasn't solely a record review in two thousand and seven that went back and grandson for medical diagnosis there was a new medical diagnosis that was absent but the medical diagnosis did include the examiner looking at this that and i'm not aware of any official change certainly information and medical knowledge or evolves over time and the medical knowledge in ninety three may have been different than two thousand and seven but also symptoms develop over time as well to me this is a remedial regulation it is intended to benefit the veteran the interpretation relied upon by the board does not benefit that trend the interpretation relied upon by the veterans court did not benefit the veteran let's go over the underlying facts again and what this regulation is intended to look at its intended look at the original claim there is no dispute in this record that the initial claim was for post traumatic stress disorder  in support of that this veteran was going to a v a vet center he got a letter from a v a counselor at that facility that specifically referenced post traumatic stress disorder been there was a considerable shift in the understanding of post traumatic stress disorder not just institutionally by the v a but by the american psychiatric association this diagnosis was originally accepted in the early  commensurate with the time of this original diagnosis at that time there were much higher requirements for a diagnosis for post traumatic stress disorder that existed and the d s m has changed at least three times since that occurred in the one nine hundred eighty s it is a much more if you will liberal view of what a person does or doesn't suffer from post traumatic stress disorder the importance of three point one five six c is the opportunity for the veteran to have the v a reconsider based upon the totality of the record as it existed after the v a received service records that existed and were relevant and were part of the decision making process that made the award those are the undisputed facts in this case and that's how this regulation to be interpreted to have the immediate effect of this regulation for the