We have a busy morning this morning. We have five cases that we're addressing today. One is on the briefs and we've received the briefs and are moving forward with that. The other four cases are said for oral argument this morning. The first case is Sullivan versus McDonald, 15-70-76. Mr. Dojaquez? Yes sir. Did I pronounce your name correctly? Dojaquez? Dojaquez. Yes okay. I understand you reserved three minutes of your time for rebuttal. Is that correct? You may proceed. Thank you sir. Please the court. My name is Kenny Dojaquez. I'm here representing Mr. Sullivan. The issue in this case is the extent of the VA's duty to assist with regard to VA medical records under 3.159-C3
. The issue really revolves around whether the records must be relevant before the duty to assist would apply. You did not, and I remember incorrectly, did not make the argument to the veterans court that relevance was not necessary only that there hadn't been a sufficient determination and explanation of it. Yes, Your Honor, that's correct. Why is that not a way for a problem for this argument? Yes sir. Under the jurisdictional statutes, I think that this court's case in Morgan, they looked at whether under 792, I think it was a, created the case jurisdiction after the amendment to the jurisdiction. And I think it's, it's a no like it's here because the, the, this court ruled that the jurisdiction, crave kind of a case jurisdiction issue. Can I, can I just, can I just, I'm go, go about it this way. But, but let's suppose for a minute that on the assumption that relevance was the standard that I thought it was a problem that the veterans court appears to have decided relevance for itself incorrectly as a matter of law because it's a factual matter and that we were remanding. At that point, I assume we could say by the way, when it goes back to the board, apply the correct standards. And if we got to that and also accepted your view that when the records are VA records, there's no relevance requirement. Nevertheless, there's a materiality standard. And then the standard of either what is it, subsection D that says if there's no reasonable possibility of it substantiating the claim, the inquiry can stop. What difference would there be between that formulation and relevance? Let me try to understand the quite. So you're asking if the first part of it is maybe waiver doesn't matter if we're sending it back anyway. And the second part of the question is even if relevance is not part of what is it is not required to get the VA records as opposed to every, all the other medical records that are in the list, nevertheless the secretary doesn't have to do that can indeed the regulation directs the secretary to refrain from, I think, as the word from getting records. If there's no reasonable possibility that it would substantiate the claim and I'm trying to understand is there any substantive difference between relevance and that subsection D standard about no reasonable possibility? Yes, sir. I think that there is and the relevance I think is a much broader class of evidence
. When you look at the, the, that term, no reasonable possibility of substantially the claim. First, in the statute itself, it's attached to and when the assistance, it's actually defines assistance. And we're looking at 503A, big AA, I'm sorry, I think it was D. No, two. I'm sorry, yes or two. No, reasonable possibility exists that such assistance would aid in substantiating the claim. And so when you look at both the statutory history in Congress, as well as many of the federal registrar entries at the secretary when promulgating the regulations, they talked about specifically where the assistance cannot aid in substantiating the claim because there's no legal basis for the claim. And that's where the difference is with relevance, the evidence becomes, does it inform the decision maker on this particular factual issue? Well, I can, I can understand how relevance has to be broader than reason, you know, reasonable possibility of assisting the claim because it could be, could have a substantial role in defeating the claim. You've got no interest in that side of relevance. How could it be relevant in a way that would be helpful to the claim unless it considered with everything else created a reasonable possibility of substantiating the claim? Well, I think before you get to that, Your Honor, you have to know what's in the records. And I think the limited information in this case, is that true? I mean, do you have to know exactly what's in the record in order to determine whether it's relevancy? Let's say that the, it's shown that the, that the record has to do with some activity before the FCC. Yes, sir. Yes, Your Honor. There, obviously there are some evidence that on their face have nothing to do with the claim. And I'm not suggesting that all evidence is required to be obtained by the VA. This is specifically to VA medical records. Yes, correct
. I understand that. But looking at the reasonable possibility that exists now. In this case, we, we really don't know what's in those records. Do we? No. So, so there's no way to determine whether there's a reasonable possibility that such assistance would aid in substantiating the claim. That's the problem here. That's the problem you have. Yes, Your Honor. That's the problem that I have with them not even attempting to get or even talking about it. We don't know what's in the records. Now, they did decide this on the basis of a statement that that should client made when he was asked about that. And he said, well, there's nothing there. I, I, I felt good at that time or something to them. His statement, sir, was that there's not, they found nothing wrong with me. And that really doesn't inform anybody about the content of those records. We know the secretary has, has acknowledged that they were properly identified on within the regulation, which means they, they know where to get on. They know that the, wouldn't that, wouldn't that statement on its face? Establish some sort of relevancy? It could, depending on the saying that's required
. I'm just saying, wouldn't a statement like that prompt the VA to say, well, you know, the, the veteran here thinks that that nothing was found wrong with them, but he's a veteran. He's not the doctor. Yes, yes, Your Honor. And that's exactly right. He is not the doctor. And, and the, the issue too is not whether there was something wrong with him. The issue is this, his condition itself and the, the, the, the history of his condition, the, the next or the, the cause of his condition and not. It's, it's well established both in the 90s and today that he has something wrong with him. So for him to say that there's nothing wrong, they found nothing wrong with me. I think is, is incredible, patently incredible and the VA can't hang their hat on that to say, or at, at, even, even less strongly, but perhaps sufficiently. His reporting, and I assume it's a completely accurate report that they found nothing wrong could mean nothing other than we know you're in terrible pain. And we've written lots and lots of records of symptoms about the symptoms in the records, but we can't find what's wrong with you. The symptom evidence would probably be pretty significant, right? Yes, Your Honor. Is it your physician that all medical records that would relate to the actual same symptoms or diagnosis that the person is complaining of would be relevant? Or is it just a case by case determination? I, I would say that in, in all cases, VA medical records that relate to a claimed condition are fall within the duty to assist. And, and obviously there, there are protections in there for harmless error both at the board and at the CABC, but I think that in any case, when you're applying for benefits from the VA, you, you need to understand the history. And, and all of the regulations talk about looking at it through the history, the disease, and you can't really be informed unless, unless you have a clear and complete picture. I have another series of questions for you that really just is kind of out of my own curiosity
. Can a veteran go and get his own records, medical records in any way, other in these kinds of proceedings by, I don't know, filing a FOIA request, I know it's not required. I'm just curious, I just don't know how it works. Yes, ma'am. The, any, the veteran has access to his, his or her own records upon request. So, why, how could we be this far along in the process without having the records in hand by now? When they were identified in the 90s, the, this is a lot of a conjecture on my part, but I think that the, obviously we're still in paper records at the time, and they were, they were using the, I've drawn a blink on the term. The VCA did away with the, forgive me. Well, they used to have a higher burden prior to, under Morton, they used to have a higher burden and the terms has lost my, has, has, has, escaped me, but. And so I think that you, you had to pretty much prove a nexus before the VA would even look at your claim. And, but, but, but, I mean, we've been, or you've been litigating even the reopening claim for quite a number of years. An answer to Judge Stoll's question, you said, and I was wondering the same thing. We're, we're currently in the situation where we're trying to think about whether records we do not have, might have anything to say. Yes. And, it's odd that we don't have the records if you could ask for them and get them. It, it, that's true. However, in the, in this particular case, and I think in a lot of cases, one, they're in Asheville and the veteran was in South Carolina. He doesn't have any money to get there. Granted, he could send a form in
. The VA already has them, and it's much easier for the VA to get them than it is for the veteran to obtain them and submit them. He submitted medical evidence from many years that he thought was sufficient based on the, the notice that he was given from the VA new material evidence. This, I believe, is new material evidence. When they placed the known reason, well, burden on a veteran to identify what records a VA has in its possession and then to go get them and, and bring them, especially when the, when the statute and the regulation 38 CFR 3159, puts a duty on the VA to assist the, the veteran in obtaining evidence. Yes, sir. Now, that was my next point. Was that, but let me ask you this question. When you look at 38 CFR 3.159, see three obtaining records and compensation claims, I see the word relevant spread throughout there. In fact, I think it's in the double, double digits, but it doesn't say relevant with respect to VA medical records or records of examination or treatment at the non VA facilities authorized by the VA. This is a non VA facility. So, or facilities authorized by the VA. Your argument is that the fact that the word relevant is in the provisions above this provision. There's a couple cases, sir, that I would cite to, um, sorry, I thought I had this paper out. Generally speaking, the VA is presumed to have knowledge of, okay, the key core of the U.S. is, I think, are strongest that when the drafters put a, put a word in one place and not in another to presume to have been intentional
. And I, and that's, I think from a long line of, of Supreme Court case law, um, that they know what they're doing and they know when they want to say something. They obviously know how to say it because they said it here and when they promulgated the duty to assist regulations under other benefits, they included relevant as a, as a descriptor of VA medical records. You, you're well into your rebuttal time here. You're well into rebuttal time. All are we sure of a little bit of time for you? Okay. So, Ms. Baker. What, what about this notion that the word relevant is not in the, in the, in the provision that, that's an issue here in the regulatory provision? It's not in the, it's not in the subsection of the provision. I'm, but as we explained in our brief, I think it's important to examine this particular provision in the context of the regulatory scheme as a whole and also in context of the statutory scheme as a whole. But aren't you then asking us to insert a limitation or a word in this provision that's simply not there? Well, your honor, the limitation, the relevancy limitation. What should the, the plain words, a plain meaning of the statute apply here? Why, why should we import the word relevance relevant into this provision? Because while it's, it's not specifically listed in that subsection, it isn't, it is in every other aspect. It is in the kind of the general, the general provisions, excuse me. But that, of course, could cut the other way. It can, however, I do think that in this instance, again, to take on that to the, the statutory scheme, the regulatory scheme, it's important to consider the duty in the context of the duty that Congress thought to impose, and then the duty that the VA thought to impose upon itself. Well, to tell, to tell me if I'm understanding this, this, this, the statute clearly says relevant. It also says, sets a floor for what the secretary has to, let's get by way of records. So it doesn't say the secretary can't do more
. It also says the secretary shall implement all this by regulation. You put that together and it seems to me, subject to one possibility, the secretary is perfectly entitled to write a regulations that says, for our own records, we'll do more. We get them all. And unless there's something in the federal register in promulgating the regulations or something that tells us, Scrivener's error, just a drafting error that word was supposed to be there. But it's not unreasonable for the secretary to say, our own records, we don't need to put the word relevant in. If I may address your question or your point and in two points. First, the Scrivener's error, if you read the federal register that the VA published when it was promulgating these regulations, it's actually clear in the federal register. Is that quoted in your? Yes, it is. What page on your brief? If you could give me one moment, you're on. I can more easily provide you the citation to the federal register than I thought you would. I don't have access to that at the moment. I understand. You can give me one moment. Unless the page is in the appendix. Thank you. Miss Ayer, on it. It's on page 18
. So there if you look at the explanation of the rule that the VA was attempting to promulgate, there they placed the word, they placed the word relevant before the colon. It is not separately articulated for each of the subparts that follows the colon. The federal register makes clear that the VA was not intending to impose upon itself a duty greater than that imposed by Congress. That's particularly important if I may turn to the second point. Congress very clearly stated that the duty to assist. This doesn't really say what it doesn't say we made a mistake when we didn't include the word relevant in this particular subsection for describing this one type of medical record. It doesn't say that. It just is something that's like legislative history or regulatory history that's inconsistent with the regulation itself, isn't it? No, it doesn't say that they made a mistake because I don't believe the VA understood the wording of the regulation and its intentions to be inconsistent at the time that it published. This is the explanation of what it's seeking to publish. Again, this is the first publication of the publication of the proposed regulation. This did not change when they published the final version of the regulation. I just thought that you were saying there was something else. Oh, no, I'm sorry that there was a scrivener's error. No, I did not mean to suggest that. When you say this did not change between the notice of proposed rule making and the final, what does this mean? The rule? I'm sorry, the language, the rule, both the language of the proposed, this portion, this subsection of the proposed regulation did not change between the proposed rule and the final rule. Should I assume that language like this block quote from the Federal Register upon the notice of proposed rule making does not appear in the Federal Register announcement of the adoption of the rules finally, or you would have quoted it? It does not. No
. There was no issue or there was no indication that anybody who read the proposed rule who commented on the proposed rule understood that the V.I. to be doing anything other than what the V.I. understands it to have been doing. So it was not addressed in the publication of the final rule, no. So the final rule would control here? The language of the final rule. And again, in the text of the regulation, in the text of the... In the final rule, it doesn't matter. They didn't include it. Well, Your Honor, no, I'm sorry. The text of the proposed rule, the text of this subsection, did not change between the proposed rule and the final rule. So this block quote that I've discussed on page 18 of my brief, is the V.I. explanation of what it is an intending to do with the right answer. The regulation, that is that issue here. Well, if they intended to do that, why didn't they just insert the word relevant? That would have made my job a lot easier to honor. I understand that. Maybe it doesn't have... maybe it's not maternalhood. I mean, it would have made your job easier and then you would win. But it's not there, so maybe you lose. Well, again, if I may put this in context both in terms of the regulation, this was at the second point to Your Honor's question. Again, Congress explicitly imposed a relevancy requirement on the duty to assist. The purpose of this duty is so that the V.I. can help veterans to the extent possible establish their claim. But it's not a fishing expedition. This is an opera.
. The regulation, that is that issue here. Well, if they intended to do that, why didn't they just insert the word relevant? That would have made my job a lot easier to honor. I understand that. Maybe it doesn't have... maybe it's not maternalhood. I mean, it would have made your job easier and then you would win. But it's not there, so maybe you lose. Well, again, if I may put this in context both in terms of the regulation, this was at the second point to Your Honor's question. Again, Congress explicitly imposed a relevancy requirement on the duty to assist. The purpose of this duty is so that the V.I. can help veterans to the extent possible establish their claim. But it's not a fishing expedition. This is an opera... it's not an adversarial process. Can we ask you about section 3.159D, the one that talks about, you know, beyond this relevancy issue, it says that the VA can refrain from providing assistance where there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. Yes. How does that factor in here? Well, here, this gets to... I think that the second portion of your conversation with Mr. DeWacken, Mr. Sullivan identified these records to some extent. He said he sought treatment in 1984. But he also said, there's nothing wrong. Now, he has discussed, well, that could establish a continuity of symptomology, which is one of the elements that is required, that a claimant must require, to establish a service connection disability. However, it doesn't address, and this is specifically what the board found in its 1997 opinion, which is page 33 of the Joint Appendix. It considered his testimony that he had made in 1994. Well, yes, he talks about how his back cart previously, and he says it through these records, but his subjective assertion of back pain doesn't establish service connection
.. it's not an adversarial process. Can we ask you about section 3.159D, the one that talks about, you know, beyond this relevancy issue, it says that the VA can refrain from providing assistance where there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. Yes. How does that factor in here? Well, here, this gets to... I think that the second portion of your conversation with Mr. DeWacken, Mr. Sullivan identified these records to some extent. He said he sought treatment in 1984. But he also said, there's nothing wrong. Now, he has discussed, well, that could establish a continuity of symptomology, which is one of the elements that is required, that a claimant must require, to establish a service connection disability. However, it doesn't address, and this is specifically what the board found in its 1997 opinion, which is page 33 of the Joint Appendix. It considered his testimony that he had made in 1994. Well, yes, he talks about how his back cart previously, and he says it through these records, but his subjective assertion of back pain doesn't establish service connection. But the records, the records from the 1984 medical evaluation at VA might add to that evidence. And nobody has ever looked at them and addressed the question of whether they help establish this continuity of symptoms. So that can't be the standard for deciding whether as a threshold matter one gets the record. Well, Your Honor, in 1997, the board didn't decide these records were not relevant, or that they were not relevant, and therefore the VA did not have a duty to obtain them, because they may help establish continuity of symptomology. The board's decision in 1997 was, we understand, he's continued to complain about back pain, and that continues. But that what these records cannot help him do is establish any sort of service connection. By his own testimony, the doctors didn't find anything wrong with him. What was the position that the reason why he thinks these records are relevant is that it occurred before the other things that the board thought were the cause of the disability, right? So if there's something that shows that the timing is off from what the board thought, why isn't that relevant? Well, Your Honor, he may think that now, but that's not what the record demonstrates. In fact, Mr. Sullivan says, the only time Mr. Sullivan raised these records was in 1994 when he was during the hearing before the VA. And he said, at some point in 1984, by his own testimony, he's not sure whether his visit to the Asheville-Mesaful Center predated or postated his motor vehicle accident, which occurred in July of 1984. And presumably the records will immediately answer that question. They could possibly. But what if the veteran had said, I was examined, and the doctors found I had tremendous back pain? Would you have sought the records in? It's not clear whether the VA..
. But the records, the records from the 1984 medical evaluation at VA might add to that evidence. And nobody has ever looked at them and addressed the question of whether they help establish this continuity of symptoms. So that can't be the standard for deciding whether as a threshold matter one gets the record. Well, Your Honor, in 1997, the board didn't decide these records were not relevant, or that they were not relevant, and therefore the VA did not have a duty to obtain them, because they may help establish continuity of symptomology. The board's decision in 1997 was, we understand, he's continued to complain about back pain, and that continues. But that what these records cannot help him do is establish any sort of service connection. By his own testimony, the doctors didn't find anything wrong with him. What was the position that the reason why he thinks these records are relevant is that it occurred before the other things that the board thought were the cause of the disability, right? So if there's something that shows that the timing is off from what the board thought, why isn't that relevant? Well, Your Honor, he may think that now, but that's not what the record demonstrates. In fact, Mr. Sullivan says, the only time Mr. Sullivan raised these records was in 1994 when he was during the hearing before the VA. And he said, at some point in 1984, by his own testimony, he's not sure whether his visit to the Asheville-Mesaful Center predated or postated his motor vehicle accident, which occurred in July of 1984. And presumably the records will immediately answer that question. They could possibly. But what if the veteran had said, I was examined, and the doctors found I had tremendous back pain? Would you have sought the records in? It's not clear whether the VA... Well, what would you be arguing that a veteran's medical opinion is late testimony and it's not... it's not... does not have the weight that a doctor's opinion would. Well, again, Your Honor, that is exactly what the board found in 1997. Again, this is page 33 of the joint appendix. The board said his testimony of back pain is not competent evidence of a service connection. It is not competent evidence of the cause of his back pain. So while Mr. Sullivan has repeatedly said, well, this could show that my back pain continued through a period of time, the board has found otherwise in a final decision that Mr. Sullivan never repealed. So, should the veteran had made a legal conclusion? Had a legal opinion as to the effect of a statement? Before the board in 1997, or you're saying that..
. Well, what would you be arguing that a veteran's medical opinion is late testimony and it's not... it's not... does not have the weight that a doctor's opinion would. Well, again, Your Honor, that is exactly what the board found in 1997. Again, this is page 33 of the joint appendix. The board said his testimony of back pain is not competent evidence of a service connection. It is not competent evidence of the cause of his back pain. So while Mr. Sullivan has repeatedly said, well, this could show that my back pain continued through a period of time, the board has found otherwise in a final decision that Mr. Sullivan never repealed. So, should the veteran had made a legal conclusion? Had a legal opinion as to the effect of a statement? Before the board in 1997, or you're saying that... It's to me that the VA is up here arguing all the time that a late person's testimony is not worthy of... does not have the same probative weight as a medical opinion. But yet, you're holding the veteran's late testimony and how I felt or how he felt to do that, to do just that. Again, Your Honor, the decision the board made, and again, it's a final decision, Mr. Sullivan, never repealed that decision, was not that he has an established continuity of symptomology. It's that he has identified nothing that establishes a service connection. He has identified nothing to show that the cause of the pain about which he has continued to complain for now almost 30 years is related to his service in the military. So there are several things. Let me see if I... I mean, this is a reopening claim. So reopening claims always occur when there's some prior decision. And with the reopening claim, he has to among other things show material evidence, something that creates a reasonable possibility of substantiating the claim. I may be a little bit off, but roughly that is the regulatory definition of materiality
. It's to me that the VA is up here arguing all the time that a late person's testimony is not worthy of... does not have the same probative weight as a medical opinion. But yet, you're holding the veteran's late testimony and how I felt or how he felt to do that, to do just that. Again, Your Honor, the decision the board made, and again, it's a final decision, Mr. Sullivan, never repealed that decision, was not that he has an established continuity of symptomology. It's that he has identified nothing that establishes a service connection. He has identified nothing to show that the cause of the pain about which he has continued to complain for now almost 30 years is related to his service in the military. So there are several things. Let me see if I... I mean, this is a reopening claim. So reopening claims always occur when there's some prior decision. And with the reopening claim, he has to among other things show material evidence, something that creates a reasonable possibility of substantiating the claim. I may be a little bit off, but roughly that is the regulatory definition of materiality. And the duty to assist regulation, or maybe even the statute, I guess the regulation, says the duty to assist applies to claimants seeking reopening. So here he is saying, I know I have this standard to meet for reopening, materiality. There must be some circumstances in which I may be... I must be able to meet it, because that's why we have reopening from previous decisions. Unless the board determines that there is no reasonable possibility that these records, which he's adequately identified as to location and date, would substantiate the claim, the VA has to get those records. And what could be a response to that is a board determination that there really is no reasonable possibility that these could substantiate the claim. And the problem is, we don't have that board decision. That's not correct, Your Honor. We do have that board decision. That is exactly the decision the board made in 1997. I'm looking at page J.A. 33, which we cited. And I don't see where it talks about the Asheville Medical Record. Can you show me where that is? It doesn't talk about the Asheville Medical Record specifically, but these records were identified during the course of this round of proceedings
. And the duty to assist regulation, or maybe even the statute, I guess the regulation, says the duty to assist applies to claimants seeking reopening. So here he is saying, I know I have this standard to meet for reopening, materiality. There must be some circumstances in which I may be... I must be able to meet it, because that's why we have reopening from previous decisions. Unless the board determines that there is no reasonable possibility that these records, which he's adequately identified as to location and date, would substantiate the claim, the VA has to get those records. And what could be a response to that is a board determination that there really is no reasonable possibility that these could substantiate the claim. And the problem is, we don't have that board decision. That's not correct, Your Honor. We do have that board decision. That is exactly the decision the board made in 1997. I'm looking at page J.A. 33, which we cited. And I don't see where it talks about the Asheville Medical Record. Can you show me where that is? It doesn't talk about the Asheville Medical Record specifically, but these records were identified during the course of this round of proceedings. So this was Mr. Sullivan's initial claim that forced service connection. I just don't see how I was supposed to look at page J.A. 33 and see that the board made the factual finding that you're asserting about the Asheville Medical Record when it's not discussed here. Well, because the board looked at the record developed before it as a whole, which includes his testimony about this. And here he talks about, you know, they don't specifically call out this one sentence of testimony, but they talk about all of the information before they talk about the record as a whole. And here they know that he talks about his pain, he talks about his back being, but he's identified no records that would connect that back pain to his service connection. Again, this is all of this information. These records were identified during, so it's his second claim before the board. And I'm sorry, I'm, see, then I'm almost out of time. It's his second claim for disability, his first claim for service connection. He identified them then. And the board found that there was, there was nothing in the record to establish his claim to sustain J.A. His claim. And then I'm sorry, I see him out of time
. So this was Mr. Sullivan's initial claim that forced service connection. I just don't see how I was supposed to look at page J.A. 33 and see that the board made the factual finding that you're asserting about the Asheville Medical Record when it's not discussed here. Well, because the board looked at the record developed before it as a whole, which includes his testimony about this. And here he talks about, you know, they don't specifically call out this one sentence of testimony, but they talk about all of the information before they talk about the record as a whole. And here they know that he talks about his pain, he talks about his back being, but he's identified no records that would connect that back pain to his service connection. Again, this is all of this information. These records were identified during, so it's his second claim before the board. And I'm sorry, I'm, see, then I'm almost out of time. It's his second claim for disability, his first claim for service connection. He identified them then. And the board found that there was, there was nothing in the record to establish his claim to sustain J.A. His claim. And then I'm sorry, I see him out of time. I'm sorry. Councillor, you can conclude. If you have a concluding sentence. Yes. The statutory and regulatory scheme are very clear here. The duty to assist is to help, is for the VA to help claimants and an attempt to establish their claim. It's in Congress was clear that their resources were to be targeted toward these types of records. It's not a fishing expedition. It's not to go out to try to obtain every record possible that may or may not have something to do with this claim. That may or may not help him to establish his claim. This decision has been, was made in 1997, he never repealed it. Thank you. Mr. DeJocque, if you have two minutes left or a minute left, no more restore you two minutes. So you will vote. Thank you. I have three points that I'd like to make
. I'm sorry. Councillor, you can conclude. If you have a concluding sentence. Yes. The statutory and regulatory scheme are very clear here. The duty to assist is to help, is for the VA to help claimants and an attempt to establish their claim. It's in Congress was clear that their resources were to be targeted toward these types of records. It's not a fishing expedition. It's not to go out to try to obtain every record possible that may or may not have something to do with this claim. That may or may not help him to establish his claim. This decision has been, was made in 1997, he never repealed it. Thank you. Mr. DeJocque, if you have two minutes left or a minute left, no more restore you two minutes. So you will vote. Thank you. I have three points that I'd like to make. I'd like to start with the statute 503A sub A. The secretary shall make reasonable efforts to assist a claimant in obtaining evidence and necessary to statute the claim. I would like to point out, I think it's quite reasonable for the VA to go and look at records that they already have. Especially in the 21st century, they can click a button on their computer and pull up every single VA medical record that's electronic. Granted, these are much older, but I think limiting it to whether or not he's correctly described what the doctors told him is a little reasonable for them to go out and get those. Since your time is short, I realize I'm going to interrupt your second and third points, but why does the determination by the board in 1997 not amount to a determination that whatever those 1984 records may contain they can't reasonably substantiate the claim? For a couple of reasons, there's no indication in 1997 that the board ever considered continuity of symptoms. I don't think Shade or Shade was even decided until right around that same time, and so that legal theory wasn't well developed at the board. Number two, they never mentioned those specific VA records. They talked about other records by name, which dealt with a different time frame, but the board never talked about these records. And three, well-grounded claim, which was the term that had left my brain for a minute. You had to first show competent evidence of a nexus between an injury and service. The board in 1997 said, no, it was this car accident that caused it. Therefore, there's no well-grounded claim. The law changed in 2000, as we know, and the well-grounded claim went away forever. And today, now he just has to show new and material evidence to reopen. And we can't forget that that's where we are under this under the regulation 3156A. And I am at a time
. Thank you very much, Gil. Thank you, sir