Legal Case Summary

I know what kind of additional error the effective role of effective additional error is to give all the remedy to suspect that there was a criminal state made in the proceeding. And Senators, seven standards, two cases, this quote recently addressed what it means in 761, the two, which requires the reference quote to take due account of the lower credit of the average. The court held in where the VA made a mistake, specifically in that case, a NCAA notice violation. That notice violation is presumed to be prejudicial. The burden was on the VA to but the presumption of prejudice. We requested the federal circuit also adopt a back instruction of the rule of prejudicial error with respect to BCAA due to assist violations. Standards relied on the Supreme Court's Kadiakis case, which held at the natural effective error before you read one. So what you're really asking us to do is extend the standards and say the same sort of burden of proof allocation ought to extend in this case as well. Because you clearly argued that the birth group shouldn't have been on this part to prove, or disprove, individual error, or should have been on the government. And that's really what Sanders would have held to, except in a slightly different context. Notice rather than the individual assist. But you're saying you think it ought to equally apply to do you assist. Does that not understand? Yes. You're not that correct. And you think because the purpose of the two notice the individual assist are the same and they're poor. Standards ought similarly to be extended to this context. Well, the purpose of the individual assist is somewhat different than the notice

. But Sanders, in this case, rather as perhaps even more be having, at least that's going to be on perhaps more than the Sanders notice issue because the VCA was in response to the veterans court's decision in the working case and working with the court's held that the VA had no duty to assist a veteran until a veteran had come forth with veterans shown that he had a plausible claim. This is precisely what the VA, what Congress did in response to order by defining the specific cognitive systems, which the VA, at the very moment, must provide the veteran. If I might just very quickly summarize what that is as it's possible to Mr. Clark's case, I think it might help with that understanding what we think that he's entitled to that same accommodation as Sanders. With regard to obtaining medical records, the VA has an obligation and the VCA is very clear in the statute and in the regulation that it must make reasonable efforts to obtain relevant medical records from private medical writers as well as from the VA and other federal agencies. What constitutes a reason of a law firm is slightly different depending on whether it's a private record or a VA record in connection with private records. The VA is being big and big and it's one request and then a follow-up request that's deemed to be reasonable under the regulations. With VA's own records or other federal agency records, the regulations quite clear. The VA has to keep going at it until it has become convinced that those records ain't done to exist or be further out as to finding a good future. In both cases, whether it is a federal agency record, including VA's or whether it is private record, if it is a VCA, it's not able to obtain those records. It has to tell them that's it. It must tell the veteran that we might able to get them explained why efforts remain to obtain them. That gives the veteran a plain opportunity to commence his own efforts to find those records or find something that would be sort of a substitute. What is a relevant record? And I would note that the VA, you see, in this case assumed that there were VA medical records that had not been obtained and that was ever for VA not to obtain them. I think that inherent in those findings are that those records would have been relevant because otherwise, what is it in here? I think you're good. I think I'm saying here, you say there's a assumption, you say something is in here

. It's apparent that they would have been able to say this presumption that records that they weren't able to find would have been relevant and would have changed the result or that, or do we go back as to how the Jeffic was made to find the records? The legal standard, the judgment is in the regulations, a quick point like five, nine, C. That regulation, with respect to agency records, not private records, but agency records, resumed or deems whether to find his relevant records, including several categories. One is sues medical records and other this VA medical records. So, VA, through its regulation, has deems its own records to be relevant. It caused the statute and commands that it shall obtain or make efforts to obtain all relevant records. I think there would have been relevant in that they would have supported the veterans' frame, or that they would have been relevant to the continually medical analysis. The statute's not there. I think that in my view, it's relevant to be continuing medical analysis because we have no way of knowing what content that record is until the VA contains the denouncing to record. So, what Congress, in my view, is getting out is we need to have a complete record, a complete plain file record of the veterans' treatment and with respect to those records that are in the possession or in the possession of the VA, it has to be. Now, the veterans' responsibility under statute, there's not at all. Under the regulation, it makes clear that the veterans' responsibility in this schematic is to cooperate with the VA and the regulation at three point, 159C2 mentioned such things as the veteran providing sufficient information so that the VA can locate the records. Also, on the RISES VA, to acquire a belt-like condition, the veteran was treated. You want to court those of you who tend that service records would need to take any medical record or his latest volatile needs. Not the service records, Your Honor, and that's not what we've never complained during this litigation. So, the veterans court took on the idea that since he fell outside the presumptive period, put in the home of the diabetes body service in Vietnam, that the medical records would be helpful. Well, that would be on the 1996

. That's on the respect that diabetes, the lung is full of playing, of course, has nothing to do with the presumptive services. Well, I'm telling you, I think the best of diabetes. Yes, yes. The lung claim that there's some attribution in medical records to his smoking habits. So, I want to set that aside from diabetes claim. What is it that would be different given that his service falls outside the presumptive period that might be a record that predates 1996 or so. I'm referring now to the lung disclosure. No, no, just say it. To the point, we need to clarify what we need by the presumptive disability. Well, there's a documented disability by the veterans administration for persons to serve for presumptive time period, being non-adionist and predatory. Well, there is a presumption of... The other issue that we have raised in connection with the diabetes claim is that 3.309 of the right now in the CFR is a list of diseases which VA has determined to be so strongly statistically associated with age and age and age and age and age and age, broadly, herbicide exposure that is the bad trend. I'm interested in relevance of non-service medical records that might be helpful in establishing claim in the CFR

. Giving the fact that it falls outside at presumptive exposure period, what is it that the doctor who's required to attend? I think that's the obstacle the veterans court jumped over because they couldn't find any relevance that the prejudice is given the time date of the records he sees. Well, the veteran... The veteran in the 90s or the first recording. Right. The veteran, first of all, or high glucose levels, the symptoms reported many many years before that. The 90s were apparently the one he was first diagnosed with diabetes. The veteran, even though he may not qualify for presumptive service connection, which is the whole bottle of X if you've got the service and the amount during the appropriate time periods, and you have one of the diseases that's on the list, which VA has statistically linked to exposure to herbicides, then they know you have service connection. That's the presumption of service connection. He has never claimed entitlement to the presumption of service connection. What he has claimed entitlement to is that he can show direct service connection by showing actual exposure to herbicides, and he has indeed presented evidence which has never been considered, so whether it's fish or not, I don't know. But he's presented evidence that he had actual exposure while he was on foot on the ground and would be a numb. It's not in the nature of a medical record. Is that correct? It's in the nature of a service record, which was valid. Nobody went along the other side to excuse his date to be a numb, that he had service, and that he is now claiming that through that service, which has been documented by a letter of readiness, he was there

. They're not claiming he was there, but what they've never taken a position on, and I never had jitter-caated, was, did he have actual exposure to herbicides? Because that's another basis upon which he can't... If he had the actual exposure, he's then entitled to the benefit of the 3.309 list of diseases which are entitled service connection based on actual exposure. So he doesn't get the presumption of service connection because it's outside the time limit for presumed exposure. You're claiming that they're missing service record, not medical? No. No, there is not. And the service records are not going to be relevant anyway, it might be. That's a good question. Well, alright, because just to follow up, because he wasn't the baby, and I didn't recall the same as just trying to make it, and he called the same, and he was inviting around activity or anything. You're asking us, since there's no evidence to presume, even though it's outside of the statute, you're in a period for the presumption to presume exposure because there's nothing in the medical records. But I try to understand the relief that the giraffes, before you ask them, go back and go back through a purpose. Well, there's an administrative decision, I had sent the appendix, they had it in 1998, and which VIII found that he had service in Vietnam. And that in turn was based on evidence which he submitted, including St. Mark's hard-pressed committee, is a statute for presumption which he doesn't go into right as in the time he was sued

. Correct. He does not get the statutory presumption of exposure. He additionally knows submittic evidence that showed that the herbicides, the phonelians, were being used in Vietnam at the time he was there. They were not apparently used in some way, but they had pogars attached that time period to the presumption of exposure. Okay, so Council, I think I understand your argument here. Let me say it to you, tell me if I've got it right. You're saying the board below, he had presented evidence of potential actual exposure, and the board below didn't address that because they basically said 3309 doesn't apply to you because you weren't there during the time period. You in turn say, no, wait a minute. You're absolutely right that we don't get the exposure presumption. Yes. 3307 forwards, however, we ought to get the service-connected presumption. That's your argument, right? We ought to get the presumption that if you have this disease, we shouldn't have to show medical nexus between diabetes and exposure to aging orange because that presumption we get from 3309, and remind me, did you cite to us, and I'm not sure if you did, or if I have really involved or have found these things? So you tell me, a federal register where the vectoring has already said that this is exactly the case, that if you complete actual exposure, you do get the service-connected presumption from the disease. I don't know if you would present us. That's it's dated May 2001. Yes, you're right. First of all, you precisely explain what our position is, which I have done so well

. Number two, what you're referring to is cited in the separatist brief on a page which was in it written, I looked out of the brief, and I did not get it until after I filed my reply, but essentially agrees with our position. On that, that's the way I read that page. So everyone here, as far as you believe, I'm sure they'll tell us the contrary, has agreed that the veterans, folks have already interpreted this regulation, and this regulation does provide a service connection to get actual exposure from the established. Sure, that's so. Okay. Thank you. Thank you, Mr. Chairman. Thank you. Thank you, Mr. Chairman. Can we start that into the better section? Absolutely. Okay. That's page 24 of the missing page of the bridge. I locked up with 21 and I got to go with two notes. We did

. We did. We have peace of court. We did cite that. What's your own? Is your own. What did you have? My own peace of court. I'm going to have to review of that. I think we're plainly good with the regulation. And in fact, the citation is to a preamble to the mental regulation, which reacted to the diabetes addition to the list of diseases. Our position on the diabetes claim is the vector sport was correct in denying the claim because Mr. Clark did not fit with an eye with the statutory regulatory definition of service and Vietnam for purposes of herbicide exposure. Did you be assert actually? In asserted a claim, he asserted a claim that he had been exposed in 1960, October 1960, when he was on a state visit aboard a boat. The response to that is in the Metropolitan Act of 1996 when Congress adjusted terms of service for purposes of herbicide exposure, Congress specifically limited the time period from January 1965, which was different from the general definition of Vietnam era, which was extended from February 1961 through May 1975. And the reason Congress did that was it was recognizing the legislative history specifically points to this out. It was recognizing that the legislative history of the state for the record is a Senate report went on for a dashed read 7-1, it beats 21-1996, I say it, because it's not an record. Specifically recognized purpose was that the studies in the Vietnam era determined that January 1922 was the first time herbicides were used in Vietnam in contrast to Mr. Clark's observation about what he considered to be the

... Boy, that's a fine in effect and that wasn't reached below and we can't do that. No, what I just said in your honors by law, Congress has gone into that area and defined the time period upon which the presumption of exposure exists within Vietnam. What about all... I mean, you all seem to have interpreted this already and to the... Not about our honor. Well, what... I'm looking at 66F, that all registered 23166, which is comments on a proposed rule. Did you go down? One commentator urged the VA amended the proposed regulation to include veterans

. He did not serve in the public of Vietnam, but were exposed to herbicides during their military service and the response is, however, if a veteran who did not serve in the public of Vietnam, but was exposed to an herbicide agent, defined in 33076, during active military service, that he has a disease on the list of diseases subject to the presumptive service connection to be a will presume the disease is due to exposure. And the key language? Not in Vietnam. Exactly. Exactly. Because what was happening is Congress has gone into numerous studies, including the document that's contained in the appendix, which the agent ordered a study that Mr. Thuck submitted below. Clearly, the evidence has always suggested that. In 1960, Vietnam approached the United States government and asked whether they would be able to use herbicides. In the United States government, it did not authorize the use of herbicides by the public of Vietnam until November 1961. And studies that have all been done and supported the legislation and for the presumption indicated that the actual herbicides were in fact used until 1962. Hence, the Vietnam area definition of the purposes of herbicide exposure begins in January in 1962. So I have going to judge the more questions. Mr. Cork, the certificate in the case was in Vietnam in 1966. Correct. And I understand what the congressional investigations found and concluded as an exchange exposure period. Although I think I understand Mr. Cork, you're saying, is I was exposed, however, to the herbicide in 1966. You know, that herbicide is, they weren't using the herbicide in 1960. But I think the question is, and this falls up on Judge Newman's question, and Judge Moore's, if there isn't a finding that, from the service record for VA and other records, how do we know whether what Mr. Cork is saying is correct or incorrect? For instance, he says, I was on the ship and I got off it. And they were spraying stuff around and it turns out that it was an herbicide that has the same chemical composition as Agent Orange. I don't know what he would have led. But I think the point is there's no finding and, or is it? Mr. Cork has asked me to the benefit of a presumption that has been established by Congress and implemented through regulation. Well, he says to put the presumption of illness if he has exposure. He says, I think it's a treacherous question of exposure. And I think what he's saying is, on there in 1960, I was exposed. What we're saying is Congress is spoken on this issue as a matter of law in order to get the presumption that relates to the connection of his present-day diabetes to his Vietnam service. He has to have served within the time period that Congress is defined. Now, his, so he's out of luck with respect to the 38th US. Nobody is serving Vietnam in 1960, even if they were raining on the day of Genoa and had photographed because your position could be under

. Although I think I understand Mr. Cork, you're saying, is I was exposed, however, to the herbicide in 1966. You know, that herbicide is, they weren't using the herbicide in 1960. But I think the question is, and this falls up on Judge Newman's question, and Judge Moore's, if there isn't a finding that, from the service record for VA and other records, how do we know whether what Mr. Cork is saying is correct or incorrect? For instance, he says, I was on the ship and I got off it. And they were spraying stuff around and it turns out that it was an herbicide that has the same chemical composition as Agent Orange. I don't know what he would have led. But I think the point is there's no finding and, or is it? Mr. Cork has asked me to the benefit of a presumption that has been established by Congress and implemented through regulation. Well, he says to put the presumption of illness if he has exposure. He says, I think it's a treacherous question of exposure. And I think what he's saying is, on there in 1960, I was exposed. What we're saying is Congress is spoken on this issue as a matter of law in order to get the presumption that relates to the connection of his present-day diabetes to his Vietnam service. He has to have served within the time period that Congress is defined. Now, his, so he's out of luck with respect to the 38th US. Nobody is serving Vietnam in 1960, even if they were raining on the day of Genoa and had photographed because your position could be under... As a matter of law, they cannot recover. As a matter of law, Congress has ruled that the effective period is the January 1962 for service in Vietnam. And nothing in the regulation that implements that changes that. What Mr. Cork is hanging his case on is this language in implementing the federal register citation implementing the regulation, which says, oh, and by the way, during the notice in comment period, we received comments from folks who did not serve in the past. They were exposed to herbicides. Would they, should they be able to establish exposure, be able to benefit from the connection between herbicide exposure and diabetes? And what the Veterans Department said in implementing the regulations that we are not going to change the language of a regulation, that deals with Vietnam service. No, that's not the right way. We should say no part. Well, the first sentence says, Section 116, Extensions and Represumption Exposure to Serpent Recycling for any veteran to serve in the Republic of Vietnam. And that's one of the disease thing was, however, if a veteran who did not... That's the exposure of presumption

... As a matter of law, they cannot recover. As a matter of law, Congress has ruled that the effective period is the January 1962 for service in Vietnam. And nothing in the regulation that implements that changes that. What Mr. Cork is hanging his case on is this language in implementing the federal register citation implementing the regulation, which says, oh, and by the way, during the notice in comment period, we received comments from folks who did not serve in the past. They were exposed to herbicides. Would they, should they be able to establish exposure, be able to benefit from the connection between herbicide exposure and diabetes? And what the Veterans Department said in implementing the regulations that we are not going to change the language of a regulation, that deals with Vietnam service. No, that's not the right way. We should say no part. Well, the first sentence says, Section 116, Extensions and Represumption Exposure to Serpent Recycling for any veteran to serve in the Republic of Vietnam. And that's one of the disease thing was, however, if a veteran who did not... That's the exposure of presumption. That doesn't say what you just said a minute ago, which was a minute ago, you said, and the regulations clearly say, if you serve in Vietnam outside of this time period, it doesn't apply to you. I have a function for the regulation. The regulations themselves, 3.307, 3.309, implement the statute and say, service in that time period required. Yeah, but you know, we also say service and Vietnam is required. And you're telling me that your interpretation from the government of that regulation is service and Vietnam is not required, if you can prove actual exposure to get the presumption, even if it's not in Vietnam. So the reg says, service in Vietnam during these years, and you've told me the government's interpretation of that reg is, it doesn't have to be in Vietnam, you can still get the disease presumption, even if it's somewhere else. What? The government's interpretation is not really of the regulation. I'm trying to find a way to explain here. The regulations, the women in the statute, which relates to Vietnam served. 3.309, EEP, in the answer. No, 3.309 relates to service in Vietnam. This is one of the distinction is that whether or not you're exposed to the determination of whether or not you're entitled to any of the presumptions, based upon, and this is the important part, based upon the Vietnam service, if your claim, like Mr

. That doesn't say what you just said a minute ago, which was a minute ago, you said, and the regulations clearly say, if you serve in Vietnam outside of this time period, it doesn't apply to you. I have a function for the regulation. The regulations themselves, 3.307, 3.309, implement the statute and say, service in that time period required. Yeah, but you know, we also say service and Vietnam is required. And you're telling me that your interpretation from the government of that regulation is service and Vietnam is not required, if you can prove actual exposure to get the presumption, even if it's not in Vietnam. So the reg says, service in Vietnam during these years, and you've told me the government's interpretation of that reg is, it doesn't have to be in Vietnam, you can still get the disease presumption, even if it's somewhere else. What? The government's interpretation is not really of the regulation. I'm trying to find a way to explain here. The regulations, the women in the statute, which relates to Vietnam served. 3.309, EEP, in the answer. No, 3.309 relates to service in Vietnam. This is one of the distinction is that whether or not you're exposed to the determination of whether or not you're entitled to any of the presumptions, based upon, and this is the important part, based upon the Vietnam service, if your claim, like Mr. Clark's is, based upon the Vietnam service, he has to have had that service within the time period established by the statute in the regulation. All of this statement says that we will treat those folks who serve as his based outside of Vietnam, but who can establish exposure the same way that it would if you could establish a right to the presumption pursuant to the statute of regulation. What we are suggesting is that in analyzing, and as a court may well know, and can certainly take to visual notice, the history of the H. Lawrence statute of regulations is long. Newer studies were conducted by, on behalf of Congress in order to identify when these things were given. So when Congress rules at the end of the day, for purposes of age and form, exposure, herbicide exposure, we're going to actually shrink the definition of Vietnam service from 1961 to 1962. Congress has concluded that if we're going to get this presumption out there, that you have to meet that. They shrunk it for the exposure presumption. For the exposure? They shrunk it for the disease presumption. That's the assumption. Let me answer one more question. But I think I'm using up all your time on this. I was just finished by saying that the whole purpose of shrinking it for the exposure presumption is to show that there wasn't potential exposure outside that period. Otherwise, it would have no reason to shrink it. Of course they would, because it could be used quite extensively during that time period, such that we wouldn't want to say everyone who's there in that time period is presumptuous. Maybe it's only use sporadically outside of that time period

. Clark's is, based upon the Vietnam service, he has to have had that service within the time period established by the statute in the regulation. All of this statement says that we will treat those folks who serve as his based outside of Vietnam, but who can establish exposure the same way that it would if you could establish a right to the presumption pursuant to the statute of regulation. What we are suggesting is that in analyzing, and as a court may well know, and can certainly take to visual notice, the history of the H. Lawrence statute of regulations is long. Newer studies were conducted by, on behalf of Congress in order to identify when these things were given. So when Congress rules at the end of the day, for purposes of age and form, exposure, herbicide exposure, we're going to actually shrink the definition of Vietnam service from 1961 to 1962. Congress has concluded that if we're going to get this presumption out there, that you have to meet that. They shrunk it for the exposure presumption. For the exposure? They shrunk it for the disease presumption. That's the assumption. Let me answer one more question. But I think I'm using up all your time on this. I was just finished by saying that the whole purpose of shrinking it for the exposure presumption is to show that there wasn't potential exposure outside that period. Otherwise, it would have no reason to shrink it. Of course they would, because it could be used quite extensively during that time period, such that we wouldn't want to say everyone who's there in that time period is presumptuous. Maybe it's only use sporadically outside of that time period. We don't want to give everyone the exposure presumption. But let's not continue to argue about this. One other thing, the VA guide on Agent Orange claims is the other reference that I've been looking at with regard to interpretation. And I don't know if this is cited by them or if my law fair is not, and unfortunately I've lost track now. So the VA has a guide. They want Agent Orange claims on your website. And I called it up, and it talks all about your 3307-3309. And let me read you this, because you may say it's the same as the way the interpreter can be comments and registrants. It's herbicides for you, but the US military to be fully eight military facilities in the US and in other countries is far back this the 1950s. Even if you did not serve in Vietnam, you can still apply for service-connected benefits if you were exposed to an herbicide on the military. And then it goes on to say, you get the presumption. Again, it's consistent. The point of the statement in the preamble to the federal registered site is to address those folks who were at Fort Detrick, for example, in the 1950s, who may have been exposed to Agent Orange when it was being tested. Or in Thailand, as the doctor in the case, where it was tested in the late 1950s. But now it's been Vietnam. Vietnam was an area, service in Vietnam was an area thoroughly exhausted by Congress when issuing, or date, USC 11-16, and by the VA, you can speak to many regulations

. We don't want to give everyone the exposure presumption. But let's not continue to argue about this. One other thing, the VA guide on Agent Orange claims is the other reference that I've been looking at with regard to interpretation. And I don't know if this is cited by them or if my law fair is not, and unfortunately I've lost track now. So the VA has a guide. They want Agent Orange claims on your website. And I called it up, and it talks all about your 3307-3309. And let me read you this, because you may say it's the same as the way the interpreter can be comments and registrants. It's herbicides for you, but the US military to be fully eight military facilities in the US and in other countries is far back this the 1950s. Even if you did not serve in Vietnam, you can still apply for service-connected benefits if you were exposed to an herbicide on the military. And then it goes on to say, you get the presumption. Again, it's consistent. The point of the statement in the preamble to the federal registered site is to address those folks who were at Fort Detrick, for example, in the 1950s, who may have been exposed to Agent Orange when it was being tested. Or in Thailand, as the doctor in the case, where it was tested in the late 1950s. But now it's been Vietnam. Vietnam was an area, service in Vietnam was an area thoroughly exhausted by Congress when issuing, or date, USC 11-16, and by the VA, you can speak to many regulations. And so, if you notice, it's consistent throughout that the key factor is service outside Vietnam. If we're talking about Vietnam, if you're going to try to base a claim on Vietnam service, you've got to meet the date restrictions. Otherwise, we recognize we did use it in other places around the world. And so, if you can establish that you were exposed at one of those other places, we'll give you the benefit of the presumption of the connection. Do you want to add anything about Sanders and his hands? Well, yes. I mean, for this four points, I think, are our relevance to the standards. First of all, Sanders obviously does not control this case. Because Sanders, on his state, in fact, has limited to the notice provisions within the Veterans' Plan to Assistance Act. Second, we think that, although, of course, well, where we're not satisfied with the rationale of standards, we think it's clearly distinguishable in this case. The Sanders Court was concerned with, how is the veteran ever supposed to know, you know, if he doesn't get the right notice, what to do in response to his claim? In contrast, in this situation, the veteran has an idea exactly of what he thinks is missing from the record. I mean, he identified it. One thing we would consider is that in Sanders' Sanders Court did not, and specifically did not, say that the veteran was relieved of his burden to identify a hero. He had identified notice error. So even if you were to apply Sanders in this case, you would have to continue to apply the fact that in this case, you would have had to identify the error, which he didn't discase. He said, I didn't have this 1994 document, this 1996 document, and I'm not happy that the extraordinary reports that weren't the facts that were reviewed by the men of the doctors, because the 2002 weren't attached when the men of the courts were provided to the board. So he's definitely identified as his three basic score failure to assist

. And so, if you notice, it's consistent throughout that the key factor is service outside Vietnam. If we're talking about Vietnam, if you're going to try to base a claim on Vietnam service, you've got to meet the date restrictions. Otherwise, we recognize we did use it in other places around the world. And so, if you can establish that you were exposed at one of those other places, we'll give you the benefit of the presumption of the connection. Do you want to add anything about Sanders and his hands? Well, yes. I mean, for this four points, I think, are our relevance to the standards. First of all, Sanders obviously does not control this case. Because Sanders, on his state, in fact, has limited to the notice provisions within the Veterans' Plan to Assistance Act. Second, we think that, although, of course, well, where we're not satisfied with the rationale of standards, we think it's clearly distinguishable in this case. The Sanders Court was concerned with, how is the veteran ever supposed to know, you know, if he doesn't get the right notice, what to do in response to his claim? In contrast, in this situation, the veteran has an idea exactly of what he thinks is missing from the record. I mean, he identified it. One thing we would consider is that in Sanders' Sanders Court did not, and specifically did not, say that the veteran was relieved of his burden to identify a hero. He had identified notice error. So even if you were to apply Sanders in this case, you would have to continue to apply the fact that in this case, you would have had to identify the error, which he didn't discase. He said, I didn't have this 1994 document, this 1996 document, and I'm not happy that the extraordinary reports that weren't the facts that were reviewed by the men of the doctors, because the 2002 weren't attached when the men of the courts were provided to the board. So he's definitely identified as his three basic score failure to assist. What's different about that than a sandwich notice question is, essentially or effectively, by identifying the notice error as he has in this case, he's pretty much identified the project. It's pretty much logical on the face of the documents as the veteran's court did. It provides the veteran's court with a very easy record to review and say, in this case, there's the 1994 document, the 1996 document, actually the court of contention, we can look and determine whether or not there was prejudice as a result. So in some sense, the assignment of the burdens was really irrelevant. In fact, even though the veteran's court says in this case, well, he didn't lead prejudice, the veteran's court goes on as it can and did in this case, and examines the record as a whole, and concludes, and I think correctly, that there could be no prejudice in this case, because the issue that all of those records go to was the issue of present disability. Let me ask you a question about direct, I was waiting to ask my school, but this veteran worked his way through the regional office and the board and the court and so on. And as far as you observed in your preparation, was there any hard evidence of exposure, was it just say I was there and all these terrible things would be done at the time? What I did review the entire record, you're right, I'm fire to the argument, and I found there was essentially, initially the issue wasn't so much exposure, he had made a statement of a claim, he assumed this is a statement in support of his case, at one time indicating that he had been a vote in May of 1961, went up the side on River, and when he was there, he looked at the shore and it looked to be cut back, he presumed it was because of her desire exposure, and moreover, he had four days of shorely, even so he thought that he could have been a step back. So that was the first time that he had been exposed at some point, that was initially what happened, that was the evidence before the regional office. The regional office determined based upon obtaining records from the military that the vote was nowhere near Vietnam in May of 1961 rather than the vote was dropped in Japan. Before the board, the veteran responded with this by providing supplement evidence in the form of a couple of letters from co people on the vote and which indicated an end of newspaper article showing the picture of the vote inside an hour. In those three pieces of evidence, allowing the veterans' departments to determine he actually was wrong with his statements with respect to service in May of 1961, the vote went up the side on River, October of 1960. So the V8 went out and got those records from the Navy, and yes, sure enough, there they are ship logs, confirm everything, and so as far as finding the fact goes, everyone now agrees that the vote went up the side on River in 1960. The evidence of exposure was limited to A, his, well it begins an end with his statements that basically find his observation of the shoreline and was cut back. I will add that the newspaper picture he included shows a picture of the vote, not that the hardware was sold just in front of it with trees on the other side. I leave that for whatever, it's not for us to talk about, but that was the evidence of exposure, simply his characterization of what he thought may have caused some of this default age, what he called default age. In contrast, of course, we have noodles and noodles of documents before Congress, which determined that it wasn't until November 1961 that the United States even authorized news for a besides and wasn't until 1962 that they were actually used

. What's different about that than a sandwich notice question is, essentially or effectively, by identifying the notice error as he has in this case, he's pretty much identified the project. It's pretty much logical on the face of the documents as the veteran's court did. It provides the veteran's court with a very easy record to review and say, in this case, there's the 1994 document, the 1996 document, actually the court of contention, we can look and determine whether or not there was prejudice as a result. So in some sense, the assignment of the burdens was really irrelevant. In fact, even though the veteran's court says in this case, well, he didn't lead prejudice, the veteran's court goes on as it can and did in this case, and examines the record as a whole, and concludes, and I think correctly, that there could be no prejudice in this case, because the issue that all of those records go to was the issue of present disability. Let me ask you a question about direct, I was waiting to ask my school, but this veteran worked his way through the regional office and the board and the court and so on. And as far as you observed in your preparation, was there any hard evidence of exposure, was it just say I was there and all these terrible things would be done at the time? What I did review the entire record, you're right, I'm fire to the argument, and I found there was essentially, initially the issue wasn't so much exposure, he had made a statement of a claim, he assumed this is a statement in support of his case, at one time indicating that he had been a vote in May of 1961, went up the side on River, and when he was there, he looked at the shore and it looked to be cut back, he presumed it was because of her desire exposure, and moreover, he had four days of shorely, even so he thought that he could have been a step back. So that was the first time that he had been exposed at some point, that was initially what happened, that was the evidence before the regional office. The regional office determined based upon obtaining records from the military that the vote was nowhere near Vietnam in May of 1961 rather than the vote was dropped in Japan. Before the board, the veteran responded with this by providing supplement evidence in the form of a couple of letters from co people on the vote and which indicated an end of newspaper article showing the picture of the vote inside an hour. In those three pieces of evidence, allowing the veterans' departments to determine he actually was wrong with his statements with respect to service in May of 1961, the vote went up the side on River, October of 1960. So the V8 went out and got those records from the Navy, and yes, sure enough, there they are ship logs, confirm everything, and so as far as finding the fact goes, everyone now agrees that the vote went up the side on River in 1960. The evidence of exposure was limited to A, his, well it begins an end with his statements that basically find his observation of the shoreline and was cut back. I will add that the newspaper picture he included shows a picture of the vote, not that the hardware was sold just in front of it with trees on the other side. I leave that for whatever, it's not for us to talk about, but that was the evidence of exposure, simply his characterization of what he thought may have caused some of this default age, what he called default age. In contrast, of course, we have noodles and noodles of documents before Congress, which determined that it wasn't until November 1961 that the United States even authorized news for a besides and wasn't until 1962 that they were actually used. I just wanted to finish out the four points about if I can, sorry, but I just wanted to finish my four points in response to the more initial question about the saying. So I'm going to talk really, I am doing that already, but we would say again, we think that it's distinguishable, we think that in this case clearly the record allowed the veteran's court to determine that the three items of evidence applied to the present-day disability prong of the three prong. It was not being insurface-incident, present-day disability in Nexus. The present-day disability prong as the court voted was not an issue. The government agreed he'd suffered, he had a present disability of diabetes as well as the lung condition, COPD. So these documents were not material, therefore were not relevant. There was an argument that perhaps they're not even, because they're not relevant to the thing, there was no reach to the duty. But what we would say is, in conclusion, because the records had issued in this case really aren't relevant to any of the issues that are outstanding. A remand by this court, to determine whether standards appropriate would seem to be not necessary, given that there's only one conclusion that could come from it, and that that would be our decision. Thank you, I want to remand it. Thank you, Mr. Wendell. I can't wait to hear your question. Have you asked any further? Yes, that's why I was asking myself what would be different if it went back. The difference would be that the VA would have to come forward and leave burden of her butt up to show that there's an absence of prejudice in the VA's failure to attend records that Mr. Clark identified

. I just wanted to finish out the four points about if I can, sorry, but I just wanted to finish my four points in response to the more initial question about the saying. So I'm going to talk really, I am doing that already, but we would say again, we think that it's distinguishable, we think that in this case clearly the record allowed the veteran's court to determine that the three items of evidence applied to the present-day disability prong of the three prong. It was not being insurface-incident, present-day disability in Nexus. The present-day disability prong as the court voted was not an issue. The government agreed he'd suffered, he had a present disability of diabetes as well as the lung condition, COPD. So these documents were not material, therefore were not relevant. There was an argument that perhaps they're not even, because they're not relevant to the thing, there was no reach to the duty. But what we would say is, in conclusion, because the records had issued in this case really aren't relevant to any of the issues that are outstanding. A remand by this court, to determine whether standards appropriate would seem to be not necessary, given that there's only one conclusion that could come from it, and that that would be our decision. Thank you, I want to remand it. Thank you, Mr. Wendell. I can't wait to hear your question. Have you asked any further? Yes, that's why I was asking myself what would be different if it went back. The difference would be that the VA would have to come forward and leave burden of her butt up to show that there's an absence of prejudice in the VA's failure to attend records that Mr. Clark identified. I mean, I think it's important to point out that the VA is already permanently told him we got to be a trademark of this. The VA just does not comply at all with BCAA due to assist provisions, and not only didn't hit the records, it misstated whether it had or not, and it has never asked kids, never complained that it didn't have enough information, never asked him to supplement his information in order to identify those records. The second way, but if this goes back, isn't the court? I mean, the government, okay, so we think the government now has the burden not Mr. Clark. Well, they're just going to say, well, those documents are irrelevant, and the worst thing is they're right. Well, what is the point? Because I think the court would be restrained from saying that documents are irrelevant, and view about 3.156 C that says they are irrelevant, being a medical records on relevant. I don't also, and I would cite this as an additional authority, not because it's binding on your honors, but because it is very instructive, there was a decision from the CNBC yesterday, in the case called Hyatt B. Nicholson, in which the CNBC without addressing the role of a press judicial error, regardless, recognize the difficulty in determining if documents are relevant when they don't have the evidence before them. They sent that case back, looking to a pre-VCA standard. The court said the issue is, are the documents potentially relevant? In that case, VA has to get them and it's breached its duty to assist by failing to do so, and sent the case back. I think it's the very same situation here. We're still talking about medical records that we don't have to include what they said. There are VA medical records that within VA's possession and VA's fact, told that, and that it has not been relevant to VA medical records. It's just very, very difficult to meet on your stand how the records court, if it applies, 3.560, and looks at the mandate from Congress that VA shall get relevant records, how it could find it's not difficult, and how it could find that the VA did meet its burden of going forward to be budgeted for the presumption of prejudice

. What the CIS has done in this case, in my New York, I was essentially putting more to that on the table. Congress made it very clear that it did not require, did not condition the VA's duty to assist the veteran on whether the veteran had a certain level or certain standard of plausibility regarding this claim. Congress wants VA to do particular things, and if they find very plainly in the statute as well as implementing regulation, they're not confusing, they're not unclear. VA just dropped the ball, didn't do the job, and insult intrigued by telling the veteran, affirmatively, we have done that job. We find out for the first time before the court that it did not do that job, and now the veteran's hands are centrally tied because he doesn't have the records he can't prove how he was prejudiced. That's one, in this case, ought to be done by Sanders, VA should be checking the burden of showing that there was an absence of harmless error. There's no question, there's no error in the question as who has to show who has the burden. I think we would be one of the issues that could be mentioned, I've been talking this all over, this is taking a decision