Next case is number 06752 National Organization. The National Organization of Veterans Advocates against the Veterans Association. The National Organization of Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advoc and that the intent of the regulation would be to cut off any chance of survivors of veterans who are the survivors of veterans who are the survivors of veterans who are presumptively secondarily or as this service character from any chance at all from having their veterans claims reopen with new material evidence. The regulation of the overall is also one reasonable you are under for this reason. At page 33 of our grief we psyched a court's attention to the cost and tino case. In that case Mr. Costantino was a little more to combat veteran left service in 1943. At the time of his death in 1993 he had been receded 100% for nine years and four months. Under the VA regulation you are not only with the VA required the Mrs. Costantino to go back to 1943 to find the service department record demonstrating that Mr. Costantino had a service-tech disability that was rated at 100%. The VA regulation also required Mrs. Costantino to demonstrate that that 100% remained in effect right until the time Mr. Costantino's death. Under the 1318 year honors Congress created specific durational periods
. In this a Costantino case the durational period would be ten years but the VA has a defect-creator regulation that would require Mrs. Costantino to show 100% rating in effect for 50 years. Congress did not give the VA that authority. Another problem with the VA regulation for honors is that the VA suggests that the service department record is akin to a clear and un-stakeable memory. It is not under the VA regulation the VA will require as I said the 3.22 B2 incorporates 3.156 C. Under the 3.156 C any survivor will have to show that the veterans that the veteran had 100% disability and it remained in effect right until the time Mr. Costantino's death. Congress did not authorize the C. Under's. And that was the court evident question to the honors. Okay
. Thank you Mr. Harman. Thank you very much. We will save the rest of your time for rebuttal. Mr. Carpenter. Thank you very much, your honors. Councillor Carpenter, on behalf of the National Organization of Veterans Advocates. National Organization of Veterans Advocates believes that the VA's rulemaking continues to misinterpret the relevant phrase in 1311, 820, and 1318 B of entitlement to receive. The interpretation that they have made is that that phrase can be limited as it relates to the submission of the material evidence. The limitation that has been imposed by the VA's proposed regulation would permit only the discovery of new service department or previously undiscovered service department records. There is nothing in the plain language of 5108 that limits the submission of new and material evidence. As a consequence we believe that the interpretation offered by the VA's regulation should be rejected by this court. Similarly, there is reliance on the part of the VA and they recognize it were ordered by this court in the Note 2 version of this REC challenge to include new and material evidence
. Well they've now included new and material evidence, but they've limited that inclusion of new and material evidence. Well they've included new and material evidence of results in retroactivity. Why isn't that a reason on interpretation? Because these do not result in retroactivity. That is a complete mischaracterization of what happens in a... No, but I'm just going to get back to my... Have they included all situations in here in which new and material evidence results in retroactivity? No. No. Why not? Because the only one that they've included is the one that is promulgated based upon the finding of supplemental service department records. And what other new and material evidence results in retroactivity? Well I think that's what I was trying to go to is that it's a misnomer to refer to as retroactivity. Okay, and the answer to the judges question directly? Okay
. The other evidence would be evidence of a diagnosis, a difference of medical opinion as to the characteristic of the condition for which... That results in retroactivity? No. It does not work. This question was what new and material evidence other than the evidence cited in the regulation will produce retroactivity? Well, I'm having trouble with the phrase retroactivity. Well, as you know what we're talking about Mr. Carbender. Don't you? Well, in relationship to the serious case, if that's where... Retroactivity is whether you're going to have your date in which you get paid, go right back to the original date you originally filed your claim. No, and that doesn't happen in a DIC claim, you know. The DIC claims are controlled for this
. We understand that. We understand. You think that retroactivity doesn't have anything to do with this statutory scheme. Okay, let's accept that for a moment. Let's forget about the statutory scheme. Under the regular statutory scheme for service-connected claims, the only ones that result in retroactive award of benefits are those relating to service department records. The only types of new and material evidence. Correct? That is correct, right? Okay. So why wasn't it rational to apply that concept here as well? Because the... Assuming that we reject your argument, I understand that. Because your honor, what you do is dealt with by the underlying statutes relied upon for the promulgation of this regulation at 7104 and 5108 is the reopening of a previously denied. The reopening of previously denied claims do not all deal with retroactivity
. They deal with establishing the right that under the 1311 and 1318 that there was a service-connected death or there was a total disability for more than the predicate number of years under the respective term limits within 1318B. And when dealing with service-connected death, you're simply trying to establish by reopening that the condition that caused the death or substantially contributed to the death was in fact entitled to have been service-connected and that there had been a previous application for service-connection or a finding of entitlement to compensation for that benefit. And the survivor under this scheme should be entitled just like establishing that there was a clear and unmistakable error should be entitled to submit new and material evidence across the board. In order to be able to establish either a service-connected death or as Mr. Horan suggested that a condition was secondary to an already service-connected condition based upon a previously denied claim or based upon a previously denied claim for increased compensation or a total rating based upon increase? I see that I'm thinking to my forebubble time. Does that answer your question? Okay, thank you Mr. Kagan. Mr. Shultzis? May I please the floor? The final rule should be affirmed because it's permissible expression of VA's rulemaking authority and interpreting the entitled to receive language. Is your argument of deference? Yes it is. And not congressional intent? No it's not. Well the definite, VA used congressional intent to engage in this rulemaking but we are clearly in the second round of Sherbrock where VA's rulemaking is entitled to deference. However, that's what we call it. That's correct, you're right
. But in terms of the congressional intent, VA looked at the purpose of the entitled to receive language that was added to section 13, 18 and 13, 11 and used that as a way of guiding itself in terms of coming up with an appropriate regulation here. So I don't want Ms. Lee to believe that the congressional intent in terms of the entitled to receive language wasn't relevant to this rulemaking. But as you can see, the difficulty and the difficulty that I am having with your position is to deliberately adopt an interpretation which is, shall I say, hostile to the veteran. And equally plausible but not selected interpretation would be less hostile and favorable to the veteran. I very hard to attribute a congressional intent to that outcome. Well your honor, first of all I don't think that it's quite fair to say that this interpretation is hostile to the veteran. What the VA has done is looked at the remedies and what Congress has done and applied a reasonable interpretation because the language we're talking about was a narrow exception to the general rule of the ICT claimants who are normally the survivors of veterans who are already receiving benefits. And when Congress intended to add that narrow exception with the entitled to receive language, the VA needed to took that and used that as a way of guiding it to only a lot of veterans to reopen claims when the remedy was retroactive and based on governmental error. But here the situation is a good example. We don't know whether this claim could or could not actually be established because of the prohibition on the resources that can be referred to. I'm not entirely sure I understand what your question is, although I suppose the best way that could respond to that is to say that we know what Congress intended to do with this language. And we know that Congress did not intend to create as broad a remedy as paralyzed veterans in Nova is suggested. And in fact, what Nova and paralyzed veterans are suggesting is to create a remedy that has tension with other sections of the statute, namely Section 50, WAC 5110, which limits when entitlement can begin
. So I think that the fair statement here is to say that VA looked at the reason for the language, entitled to receive language. And they knew that it was a narrow remedy and they looked at the options essentially that were left open. And they said that in order for them to in order for a claim that to fairly do what it is a Congress intended, that remedy had to have retroactive effect because of governmental error. And so they came up with a reasonable regulation based on that. Is could it have been broader theoretically? Well, yes, any any remedy which grants greater benefits is theoretically more generous. But looking at what it was a Congress intended to do with the entitled to receive language and knowing full well that what is being suggested by PVA in Nova is very broad. And Congress certainly did not say anything about that remedy. The VA didn't believe that that was what was intended given a month and other things and the administrative difficulty of doing that. Remember what we're doing what we're talking about is our claimants with long standing disability. And if we do what Nova and PVA are suggested with new evidence, all kinds of new evidence, you still create lots of uncertainty in terms of establishing a non-Septic and you're taking away by having to ask them to ignore Section 5110, one of the major tools that the VA has for doing. So we think it was a fair reading of the statute and a fair threading of this regulatory report. Can I ask a question about a presentive service claim that Mr. Horan is worried about? Samov veteran comes forward and wants to show that he had multiple sclerosis M.S
. developed to take 10 degrees or more within seven years in the data separation. Separate he wants to come in and make that showing because he'd like to get presentive service connection for the M.S. as though it had incurred in service. And he files his claim and he's got some evidence but the R.O. and the board rejects him on the ground that he has not made a showing that he has M.S. at 10 degree 10% or more. Okay, for the seven year period. But there is a medical record that the VA has that actually establishes that point but they couldn't find it or it was lost or something. Wouldn't his survivors would be able to come in and make a VIC claim based on the medical record that didn't exist at the time he made his claim for presentive service connection? I think he asked us yes because that is newly discovered out there. It's well it's it's new evidence of the medical kind that your regulation will allow to come forward correct? And wouldn't the same necessarily be true on some of the other non direct connected claims that Mr. Hernandez worried about? I'm not entirely sure
. I think the honest answer to that is I don't know because I'm not entirely sure about all the claims that Mr. Hernandez speaking to. Do you know that they're really trying to do here? Well, the presentive service connection for diseases associated with exposure to herbicides. You could have the same type of situation where the person came in and asked for a presentive service connection and was turned down on the ground that the medical evidence that they that the veteran brought forward didn't show the necessary disease that's associated with exposure to herbicide. Even though there may have been a record somewhere hypothetically in the department that made that showing. I would think that in any of these indirect association cases if someone could produce the magic medical record from the VA that actually gives you your entitlement that they would be able to use that that evidence under your regulation. Are you talking about that evidence showing that the survivor or that the veteran had the veteran actually had a condition that met the test of the time that so that so that then the VA would theoretically be able to search its records and look for the appropriate record. Right. It's the same way that you're to the extent that your regulation is going to allow new and material evidence to come into the DIC case. Right. It's that one winning piece of factual medical evidence that wasn't in the record when it should have been at the time the claim was being processed. Isn't that right? I think that's correct. I mean, it's like QE. It's factual QE instead of making a statement. Right. As long as it's we're talking about governmental error essentially fundamental product here, yes. Right. Right. If it's in his physician's office, not in the government records, it wouldn't come in. Well, I think though that the question that I was responding to was we're talking about an assay. Yes. The question was limited to the record actually being in the government file. Right. But if it's not in the government files, but in his own physician's files, it still couldn't come in. Well, that piece of evidence in of itself wouldn't be enough to establish a claim all. Well, you might know. Why don't we just assume that it's good evidence that is strong evidence? I think that I think to answer your question that the good evidence is being brought forward would not be enough to establish a DIC one. Well, we're talking about this
. Right. As long as it's we're talking about governmental error essentially fundamental product here, yes. Right. Right. If it's in his physician's office, not in the government records, it wouldn't come in. Well, I think though that the question that I was responding to was we're talking about an assay. Yes. The question was limited to the record actually being in the government file. Right. But if it's not in the government files, but in his own physician's files, it still couldn't come in. Well, that piece of evidence in of itself wouldn't be enough to establish a claim all. Well, you might know. Why don't we just assume that it's good evidence that is strong evidence? I think that I think to answer your question that the good evidence is being brought forward would not be enough to establish a DIC one. Well, we're talking about this. I wouldn't be admitted at all on your interpretation. Whether it would or wouldn't you, you'll never know if it would be enough. Isn't that right? Right. That in of itself, but the critical piece of evidence, the part, the one, what makes it a valid claim, would be the newly discovered evidence. So I think I think that is really discovered in the government's file. Right. That wasn't my question. I'm sorry, that could be. I was asking about evidence that's not in the government's files, that's in the physician's private files. That couldn't come in no matter how good it is. Well, right. It wouldn't be sufficient. And it wouldn't come in because generally speaking, you cannot reopen. Essentially, VA has limited reopening regulation to an instance where there is zero
. I wouldn't be admitted at all on your interpretation. Whether it would or wouldn't you, you'll never know if it would be enough. Isn't that right? Right. That in of itself, but the critical piece of evidence, the part, the one, what makes it a valid claim, would be the newly discovered evidence. So I think I think that is really discovered in the government's file. Right. That wasn't my question. I'm sorry, that could be. I was asking about evidence that's not in the government's files, that's in the physician's private files. That couldn't come in no matter how good it is. Well, right. It wouldn't be sufficient. And it wouldn't come in because generally speaking, you cannot reopen. Essentially, VA has limited reopening regulation to an instance where there is zero. That's the issue, isn't it? There is now this step towards reopening, but it doesn't open it all the way. And that's what the concern is. And the concern has always been that that is the only type of reopening that has retroactive effect, is because of governmental error. And because that's a unique type of reopening, unique characteristic, that would be a valid reopening of the DIC claim as opposed to a general type where you're coming in with new evidence. Well, what about, so you say that it's due to governmental error. There are governmental error situations that don't come under the records provision. I wrote a concurring opinion in Cook suggesting that a past violation of the government's due to assist, which prevented the claim of the veteran from developing evidence in the past. And that might be a situation that required retroactivity. Right, that would be a governmental error of violation of the duty to assist in the past, which prevented him from developing evidence. And the question would be, if there was a violation of the duty to assist, that is a past governmental error. Or why shouldn't that be a retroactive situation as well as the government record situation? I think the answer to that is that the governmental error here goes to the evidence that was on the record. I mean, this is supposed to be a relatively summary review. And we're talking about a clear and unmistakable error is based on the record as it existed. Newly discovered evidence would be based on evidence that the government should have produced before but did not
. That's the issue, isn't it? There is now this step towards reopening, but it doesn't open it all the way. And that's what the concern is. And the concern has always been that that is the only type of reopening that has retroactive effect, is because of governmental error. And because that's a unique type of reopening, unique characteristic, that would be a valid reopening of the DIC claim as opposed to a general type where you're coming in with new evidence. Well, what about, so you say that it's due to governmental error. There are governmental error situations that don't come under the records provision. I wrote a concurring opinion in Cook suggesting that a past violation of the government's due to assist, which prevented the claim of the veteran from developing evidence in the past. And that might be a situation that required retroactivity. Right, that would be a governmental error of violation of the duty to assist in the past, which prevented him from developing evidence. And the question would be, if there was a violation of the duty to assist, that is a past governmental error. Or why shouldn't that be a retroactive situation as well as the government record situation? I think the answer to that is that the governmental error here goes to the evidence that was on the record. I mean, this is supposed to be a relatively summary review. And we're talking about a clear and unmistakable error is based on the record as it existed. Newly discovered evidence would be based on evidence that the government should have produced before but did not. As far as whether other remedies could exist, I'm not aware of other remedies that have retroactive effect. Was the agency obligated to have this window open for new and material evidence of this limited type government error? No. The agency... You've got a regulation that the agency has promulgated. It's the agency has decided by its notice and real-mic comic and real power to grant retroactive effect to a certain type of medical evidence. Yes. New and material evidence by... It's a governmental error medical evidence. If you wanted to write that regulation to cover all new and material evidence, you could, couldn't you? I think that's true, yes, Your Honor. Except for the statutory prohibition in 501-10, which precludes the entitlement
. As far as whether other remedies could exist, I'm not aware of other remedies that have retroactive effect. Was the agency obligated to have this window open for new and material evidence of this limited type government error? No. The agency... You've got a regulation that the agency has promulgated. It's the agency has decided by its notice and real-mic comic and real power to grant retroactive effect to a certain type of medical evidence. Yes. New and material evidence by... It's a governmental error medical evidence. If you wanted to write that regulation to cover all new and material evidence, you could, couldn't you? I think that's true, yes, Your Honor. Except for the statutory prohibition in 501-10, which precludes the entitlement. I mean, what you would then do is if you brought this to general... Well, your regulation has runs up against that statute. But the regulatory... QE is statutory, right? The retroactivity of QE is statutory. Congress said you'll have retroactive if there's clearly none second-ware. That's true, Your Honor. It is now. But one of the reasons that we cited the Spencer decision was to show that this retroactivity is something that predates..
. I mean, what you would then do is if you brought this to general... Well, your regulation has runs up against that statute. But the regulatory... QE is statutory, right? The retroactivity of QE is statutory. Congress said you'll have retroactive if there's clearly none second-ware. That's true, Your Honor. It is now. But one of the reasons that we cited the Spencer decision was to show that this retroactivity is something that predates... It was essentially codified by Congress. These remedies existed long ago on the 30th, I think, as public decision sites. So, it's a long standing practice. It's a long... And that's really what the VA needed to do was to reconcile the statute of requirement with its long standing practice. And for those reasons, we respectfully request that this final rule be affirmed. Thank you, Mr. Schultz. Mr. Arran. The other point I want to make is that their regulation.
. It was essentially codified by Congress. These remedies existed long ago on the 30th, I think, as public decision sites. So, it's a long standing practice. It's a long... And that's really what the VA needed to do was to reconcile the statute of requirement with its long standing practice. And for those reasons, we respectfully request that this final rule be affirmed. Thank you, Mr. Schultz. Mr. Arran. The other point I want to make is that their regulation... I mean, the VA regulations are arbitrary and appreciative as to be considered this example. You have a veteran who was awarded service connect on a presumptive or as if serves connected basis. And if the veteran made it, he's 100% he made it to 10 years. His surviving spouse is entitled to the D.I.C. If the veteran dies at 9 years, 364 days, his surviving spouse cannot fly any new material others. The veteran missed it by one day and yet one of the VA regulations, it is impossible for the survivor to reopen these claims. As to the argument about retroactive effect, there is no retroactive effect in effect. If the veteran were alive and they found a service record, their authorized meeting to the VA could go back and award the veteran or retroactive effective day after discharge from service. Subject to the fact that medical evidence supports the rating. VA has incorporated 3.156 C into 3
.. I mean, the VA regulations are arbitrary and appreciative as to be considered this example. You have a veteran who was awarded service connect on a presumptive or as if serves connected basis. And if the veteran made it, he's 100% he made it to 10 years. His surviving spouse is entitled to the D.I.C. If the veteran dies at 9 years, 364 days, his surviving spouse cannot fly any new material others. The veteran missed it by one day and yet one of the VA regulations, it is impossible for the survivor to reopen these claims. As to the argument about retroactive effect, there is no retroactive effect in effect. If the veteran were alive and they found a service record, their authorized meeting to the VA could go back and award the veteran or retroactive effective day after discharge from service. Subject to the fact that medical evidence supports the rating. VA has incorporated 3.156 C into 3.B2, which means that at any time assuming, by some miracle, a survivor of a presumptive service connective veteran could actually find a service department record, the survivor would have to show the 100% right up until the date of the veteran's death. The regulation of the arquature, if I may not point out to the honors, is that the VA never set in their rulemaking that this was their intent, that the only persons they ever intended could possibly benefit under the regulation, was a survivor of a veteran who was directly service connective. As to the retroactive effect, there is none. If a survivor were to show a service record today, at any time between discharge from service, right up until date of death, under 3.156 C, the VA could simply say, oh, you missed a 10 years, the 100% right there, so your veteran did not live for the continued 10-year period. Inclusion honors, the VA regulation is arquature and profusious, but they never put it out from most incognites, and it makes it impossible for even the survivors of directly service-ceptive veterans to establish their entitlement to the agency. Thank you. Thank you. Mr. Carter, thank you. Mr. Carter, please, the retroactive, or excuse me, the assignment of an effective date in a DIC claim, and a claim for survivor benefits, whether under 13-11 or 13-18, is controlled by 51-10-A. 51-10-A assigns the effective date as of the date that the claim is made. If a survivor is permitted by being regulation to reopen a prior claim of the veteran, there is no retroactivity of that decision, because the effective date is always controlled by 51-10-A
.B2, which means that at any time assuming, by some miracle, a survivor of a presumptive service connective veteran could actually find a service department record, the survivor would have to show the 100% right up until the date of the veteran's death. The regulation of the arquature, if I may not point out to the honors, is that the VA never set in their rulemaking that this was their intent, that the only persons they ever intended could possibly benefit under the regulation, was a survivor of a veteran who was directly service connective. As to the retroactive effect, there is none. If a survivor were to show a service record today, at any time between discharge from service, right up until date of death, under 3.156 C, the VA could simply say, oh, you missed a 10 years, the 100% right there, so your veteran did not live for the continued 10-year period. Inclusion honors, the VA regulation is arquature and profusious, but they never put it out from most incognites, and it makes it impossible for even the survivors of directly service-ceptive veterans to establish their entitlement to the agency. Thank you. Thank you. Mr. Carter, thank you. Mr. Carter, please, the retroactive, or excuse me, the assignment of an effective date in a DIC claim, and a claim for survivor benefits, whether under 13-11 or 13-18, is controlled by 51-10-A. 51-10-A assigns the effective date as of the date that the claim is made. If a survivor is permitted by being regulation to reopen a prior claim of the veteran, there is no retroactivity of that decision, because the effective date is always controlled by 51-10-A. 51-10-A only permits the DIC claim from being awarded from the date that that claim is made, or within a certain window to go back to the date of death, which is made within a specific time. Therefore, the entire discussion of retroactivity in terms of new and material evidence is a straw man. There is no retroactivity in play here. The retroactivity in play in a DIC claim only establishes the right of the survivor to claim the survivor benefits under 13-11 or either a service-connected debt by establishing a condition that was entitled to be deemed service-connected. Or establishing that there was entitlement to a total rating within a statutory criteria. Unless there's any further questions. Thank you Mr. Carpenter. Mr. Iran. Mr. Schilder, the case is taken under submission.
Next case is number 06752 National Organization. The National Organization of Veterans Advocates against the Veterans Association. The National Organization of Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advocates against the Veterans Advoc and that the intent of the regulation would be to cut off any chance of survivors of veterans who are the survivors of veterans who are the survivors of veterans who are presumptively secondarily or as this service character from any chance at all from having their veterans claims reopen with new material evidence. The regulation of the overall is also one reasonable you are under for this reason. At page 33 of our grief we psyched a court's attention to the cost and tino case. In that case Mr. Costantino was a little more to combat veteran left service in 1943. At the time of his death in 1993 he had been receded 100% for nine years and four months. Under the VA regulation you are not only with the VA required the Mrs. Costantino to go back to 1943 to find the service department record demonstrating that Mr. Costantino had a service-tech disability that was rated at 100%. The VA regulation also required Mrs. Costantino to demonstrate that that 100% remained in effect right until the time Mr. Costantino's death. Under the 1318 year honors Congress created specific durational periods. In this a Costantino case the durational period would be ten years but the VA has a defect-creator regulation that would require Mrs. Costantino to show 100% rating in effect for 50 years. Congress did not give the VA that authority. Another problem with the VA regulation for honors is that the VA suggests that the service department record is akin to a clear and un-stakeable memory. It is not under the VA regulation the VA will require as I said the 3.22 B2 incorporates 3.156 C. Under the 3.156 C any survivor will have to show that the veterans that the veteran had 100% disability and it remained in effect right until the time Mr. Costantino's death. Congress did not authorize the C. Under's. And that was the court evident question to the honors. Okay. Thank you Mr. Harman. Thank you very much. We will save the rest of your time for rebuttal. Mr. Carpenter. Thank you very much, your honors. Councillor Carpenter, on behalf of the National Organization of Veterans Advocates. National Organization of Veterans Advocates believes that the VA's rulemaking continues to misinterpret the relevant phrase in 1311, 820, and 1318 B of entitlement to receive. The interpretation that they have made is that that phrase can be limited as it relates to the submission of the material evidence. The limitation that has been imposed by the VA's proposed regulation would permit only the discovery of new service department or previously undiscovered service department records. There is nothing in the plain language of 5108 that limits the submission of new and material evidence. As a consequence we believe that the interpretation offered by the VA's regulation should be rejected by this court. Similarly, there is reliance on the part of the VA and they recognize it were ordered by this court in the Note 2 version of this REC challenge to include new and material evidence. Well they've now included new and material evidence, but they've limited that inclusion of new and material evidence. Well they've included new and material evidence of results in retroactivity. Why isn't that a reason on interpretation? Because these do not result in retroactivity. That is a complete mischaracterization of what happens in a... No, but I'm just going to get back to my... Have they included all situations in here in which new and material evidence results in retroactivity? No. No. Why not? Because the only one that they've included is the one that is promulgated based upon the finding of supplemental service department records. And what other new and material evidence results in retroactivity? Well I think that's what I was trying to go to is that it's a misnomer to refer to as retroactivity. Okay, and the answer to the judges question directly? Okay. The other evidence would be evidence of a diagnosis, a difference of medical opinion as to the characteristic of the condition for which... That results in retroactivity? No. It does not work. This question was what new and material evidence other than the evidence cited in the regulation will produce retroactivity? Well, I'm having trouble with the phrase retroactivity. Well, as you know what we're talking about Mr. Carbender. Don't you? Well, in relationship to the serious case, if that's where... Retroactivity is whether you're going to have your date in which you get paid, go right back to the original date you originally filed your claim. No, and that doesn't happen in a DIC claim, you know. The DIC claims are controlled for this. We understand that. We understand. You think that retroactivity doesn't have anything to do with this statutory scheme. Okay, let's accept that for a moment. Let's forget about the statutory scheme. Under the regular statutory scheme for service-connected claims, the only ones that result in retroactive award of benefits are those relating to service department records. The only types of new and material evidence. Correct? That is correct, right? Okay. So why wasn't it rational to apply that concept here as well? Because the... Assuming that we reject your argument, I understand that. Because your honor, what you do is dealt with by the underlying statutes relied upon for the promulgation of this regulation at 7104 and 5108 is the reopening of a previously denied. The reopening of previously denied claims do not all deal with retroactivity. They deal with establishing the right that under the 1311 and 1318 that there was a service-connected death or there was a total disability for more than the predicate number of years under the respective term limits within 1318B. And when dealing with service-connected death, you're simply trying to establish by reopening that the condition that caused the death or substantially contributed to the death was in fact entitled to have been service-connected and that there had been a previous application for service-connection or a finding of entitlement to compensation for that benefit. And the survivor under this scheme should be entitled just like establishing that there was a clear and unmistakable error should be entitled to submit new and material evidence across the board. In order to be able to establish either a service-connected death or as Mr. Horan suggested that a condition was secondary to an already service-connected condition based upon a previously denied claim or based upon a previously denied claim for increased compensation or a total rating based upon increase? I see that I'm thinking to my forebubble time. Does that answer your question? Okay, thank you Mr. Kagan. Mr. Shultzis? May I please the floor? The final rule should be affirmed because it's permissible expression of VA's rulemaking authority and interpreting the entitled to receive language. Is your argument of deference? Yes it is. And not congressional intent? No it's not. Well the definite, VA used congressional intent to engage in this rulemaking but we are clearly in the second round of Sherbrock where VA's rulemaking is entitled to deference. However, that's what we call it. That's correct, you're right. But in terms of the congressional intent, VA looked at the purpose of the entitled to receive language that was added to section 13, 18 and 13, 11 and used that as a way of guiding itself in terms of coming up with an appropriate regulation here. So I don't want Ms. Lee to believe that the congressional intent in terms of the entitled to receive language wasn't relevant to this rulemaking. But as you can see, the difficulty and the difficulty that I am having with your position is to deliberately adopt an interpretation which is, shall I say, hostile to the veteran. And equally plausible but not selected interpretation would be less hostile and favorable to the veteran. I very hard to attribute a congressional intent to that outcome. Well your honor, first of all I don't think that it's quite fair to say that this interpretation is hostile to the veteran. What the VA has done is looked at the remedies and what Congress has done and applied a reasonable interpretation because the language we're talking about was a narrow exception to the general rule of the ICT claimants who are normally the survivors of veterans who are already receiving benefits. And when Congress intended to add that narrow exception with the entitled to receive language, the VA needed to took that and used that as a way of guiding it to only a lot of veterans to reopen claims when the remedy was retroactive and based on governmental error. But here the situation is a good example. We don't know whether this claim could or could not actually be established because of the prohibition on the resources that can be referred to. I'm not entirely sure I understand what your question is, although I suppose the best way that could respond to that is to say that we know what Congress intended to do with this language. And we know that Congress did not intend to create as broad a remedy as paralyzed veterans in Nova is suggested. And in fact, what Nova and paralyzed veterans are suggesting is to create a remedy that has tension with other sections of the statute, namely Section 50, WAC 5110, which limits when entitlement can begin. So I think that the fair statement here is to say that VA looked at the reason for the language, entitled to receive language. And they knew that it was a narrow remedy and they looked at the options essentially that were left open. And they said that in order for them to in order for a claim that to fairly do what it is a Congress intended, that remedy had to have retroactive effect because of governmental error. And so they came up with a reasonable regulation based on that. Is could it have been broader theoretically? Well, yes, any any remedy which grants greater benefits is theoretically more generous. But looking at what it was a Congress intended to do with the entitled to receive language and knowing full well that what is being suggested by PVA in Nova is very broad. And Congress certainly did not say anything about that remedy. The VA didn't believe that that was what was intended given a month and other things and the administrative difficulty of doing that. Remember what we're doing what we're talking about is our claimants with long standing disability. And if we do what Nova and PVA are suggested with new evidence, all kinds of new evidence, you still create lots of uncertainty in terms of establishing a non-Septic and you're taking away by having to ask them to ignore Section 5110, one of the major tools that the VA has for doing. So we think it was a fair reading of the statute and a fair threading of this regulatory report. Can I ask a question about a presentive service claim that Mr. Horan is worried about? Samov veteran comes forward and wants to show that he had multiple sclerosis M.S. developed to take 10 degrees or more within seven years in the data separation. Separate he wants to come in and make that showing because he'd like to get presentive service connection for the M.S. as though it had incurred in service. And he files his claim and he's got some evidence but the R.O. and the board rejects him on the ground that he has not made a showing that he has M.S. at 10 degree 10% or more. Okay, for the seven year period. But there is a medical record that the VA has that actually establishes that point but they couldn't find it or it was lost or something. Wouldn't his survivors would be able to come in and make a VIC claim based on the medical record that didn't exist at the time he made his claim for presentive service connection? I think he asked us yes because that is newly discovered out there. It's well it's it's new evidence of the medical kind that your regulation will allow to come forward correct? And wouldn't the same necessarily be true on some of the other non direct connected claims that Mr. Hernandez worried about? I'm not entirely sure. I think the honest answer to that is I don't know because I'm not entirely sure about all the claims that Mr. Hernandez speaking to. Do you know that they're really trying to do here? Well, the presentive service connection for diseases associated with exposure to herbicides. You could have the same type of situation where the person came in and asked for a presentive service connection and was turned down on the ground that the medical evidence that they that the veteran brought forward didn't show the necessary disease that's associated with exposure to herbicide. Even though there may have been a record somewhere hypothetically in the department that made that showing. I would think that in any of these indirect association cases if someone could produce the magic medical record from the VA that actually gives you your entitlement that they would be able to use that that evidence under your regulation. Are you talking about that evidence showing that the survivor or that the veteran had the veteran actually had a condition that met the test of the time that so that so that then the VA would theoretically be able to search its records and look for the appropriate record. Right. It's the same way that you're to the extent that your regulation is going to allow new and material evidence to come into the DIC case. Right. It's that one winning piece of factual medical evidence that wasn't in the record when it should have been at the time the claim was being processed. Isn't that right? I think that's correct. I mean, it's like QE. It's factual QE instead of making a statement. Right. As long as it's we're talking about governmental error essentially fundamental product here, yes. Right. Right. If it's in his physician's office, not in the government records, it wouldn't come in. Well, I think though that the question that I was responding to was we're talking about an assay. Yes. The question was limited to the record actually being in the government file. Right. But if it's not in the government files, but in his own physician's files, it still couldn't come in. Well, that piece of evidence in of itself wouldn't be enough to establish a claim all. Well, you might know. Why don't we just assume that it's good evidence that is strong evidence? I think that I think to answer your question that the good evidence is being brought forward would not be enough to establish a DIC one. Well, we're talking about this. I wouldn't be admitted at all on your interpretation. Whether it would or wouldn't you, you'll never know if it would be enough. Isn't that right? Right. That in of itself, but the critical piece of evidence, the part, the one, what makes it a valid claim, would be the newly discovered evidence. So I think I think that is really discovered in the government's file. Right. That wasn't my question. I'm sorry, that could be. I was asking about evidence that's not in the government's files, that's in the physician's private files. That couldn't come in no matter how good it is. Well, right. It wouldn't be sufficient. And it wouldn't come in because generally speaking, you cannot reopen. Essentially, VA has limited reopening regulation to an instance where there is zero. That's the issue, isn't it? There is now this step towards reopening, but it doesn't open it all the way. And that's what the concern is. And the concern has always been that that is the only type of reopening that has retroactive effect, is because of governmental error. And because that's a unique type of reopening, unique characteristic, that would be a valid reopening of the DIC claim as opposed to a general type where you're coming in with new evidence. Well, what about, so you say that it's due to governmental error. There are governmental error situations that don't come under the records provision. I wrote a concurring opinion in Cook suggesting that a past violation of the government's due to assist, which prevented the claim of the veteran from developing evidence in the past. And that might be a situation that required retroactivity. Right, that would be a governmental error of violation of the duty to assist in the past, which prevented him from developing evidence. And the question would be, if there was a violation of the duty to assist, that is a past governmental error. Or why shouldn't that be a retroactive situation as well as the government record situation? I think the answer to that is that the governmental error here goes to the evidence that was on the record. I mean, this is supposed to be a relatively summary review. And we're talking about a clear and unmistakable error is based on the record as it existed. Newly discovered evidence would be based on evidence that the government should have produced before but did not. As far as whether other remedies could exist, I'm not aware of other remedies that have retroactive effect. Was the agency obligated to have this window open for new and material evidence of this limited type government error? No. The agency... You've got a regulation that the agency has promulgated. It's the agency has decided by its notice and real-mic comic and real power to grant retroactive effect to a certain type of medical evidence. Yes. New and material evidence by... It's a governmental error medical evidence. If you wanted to write that regulation to cover all new and material evidence, you could, couldn't you? I think that's true, yes, Your Honor. Except for the statutory prohibition in 501-10, which precludes the entitlement. I mean, what you would then do is if you brought this to general... Well, your regulation has runs up against that statute. But the regulatory... QE is statutory, right? The retroactivity of QE is statutory. Congress said you'll have retroactive if there's clearly none second-ware. That's true, Your Honor. It is now. But one of the reasons that we cited the Spencer decision was to show that this retroactivity is something that predates... It was essentially codified by Congress. These remedies existed long ago on the 30th, I think, as public decision sites. So, it's a long standing practice. It's a long... And that's really what the VA needed to do was to reconcile the statute of requirement with its long standing practice. And for those reasons, we respectfully request that this final rule be affirmed. Thank you, Mr. Schultz. Mr. Arran. The other point I want to make is that their regulation... I mean, the VA regulations are arbitrary and appreciative as to be considered this example. You have a veteran who was awarded service connect on a presumptive or as if serves connected basis. And if the veteran made it, he's 100% he made it to 10 years. His surviving spouse is entitled to the D.I.C. If the veteran dies at 9 years, 364 days, his surviving spouse cannot fly any new material others. The veteran missed it by one day and yet one of the VA regulations, it is impossible for the survivor to reopen these claims. As to the argument about retroactive effect, there is no retroactive effect in effect. If the veteran were alive and they found a service record, their authorized meeting to the VA could go back and award the veteran or retroactive effective day after discharge from service. Subject to the fact that medical evidence supports the rating. VA has incorporated 3.156 C into 3.B2, which means that at any time assuming, by some miracle, a survivor of a presumptive service connective veteran could actually find a service department record, the survivor would have to show the 100% right up until the date of the veteran's death. The regulation of the arquature, if I may not point out to the honors, is that the VA never set in their rulemaking that this was their intent, that the only persons they ever intended could possibly benefit under the regulation, was a survivor of a veteran who was directly service connective. As to the retroactive effect, there is none. If a survivor were to show a service record today, at any time between discharge from service, right up until date of death, under 3.156 C, the VA could simply say, oh, you missed a 10 years, the 100% right there, so your veteran did not live for the continued 10-year period. Inclusion honors, the VA regulation is arquature and profusious, but they never put it out from most incognites, and it makes it impossible for even the survivors of directly service-ceptive veterans to establish their entitlement to the agency. Thank you. Thank you. Mr. Carter, thank you. Mr. Carter, please, the retroactive, or excuse me, the assignment of an effective date in a DIC claim, and a claim for survivor benefits, whether under 13-11 or 13-18, is controlled by 51-10-A. 51-10-A assigns the effective date as of the date that the claim is made. If a survivor is permitted by being regulation to reopen a prior claim of the veteran, there is no retroactivity of that decision, because the effective date is always controlled by 51-10-A. 51-10-A only permits the DIC claim from being awarded from the date that that claim is made, or within a certain window to go back to the date of death, which is made within a specific time. Therefore, the entire discussion of retroactivity in terms of new and material evidence is a straw man. There is no retroactivity in play here. The retroactivity in play in a DIC claim only establishes the right of the survivor to claim the survivor benefits under 13-11 or either a service-connected debt by establishing a condition that was entitled to be deemed service-connected. Or establishing that there was entitlement to a total rating within a statutory criteria. Unless there's any further questions. Thank you Mr. Carpenter. Mr. Iran. Mr. Schilder, the case is taken under submission