[00:00:03] Speaker 03:
Our second case this morning is number 181546 Fry versus Wilkie.

[00:00:41] Speaker 03:
Our council for the second case here.

[00:01:27] Speaker 01:
Thank you, Your Honor.

[00:01:29] Speaker 01:
My name is Travis West.

[00:01:30] Speaker 01:
I'm here from Wannakee, Wisconsin to represent Sergeant Richard E. Fry, U.S.

[00:01:35] Speaker 01:
Army retired medically in 1971.

[00:01:39] Speaker 04:
Sergeant Fry is... Mr. West, you have a superficially attractive case because of Estimand v. Brown.

[00:01:49] Speaker 04:
But you're making a clear and unmistakable error argument.

[00:01:53] Speaker 04:
And Brown is later in time.

[00:01:56] Speaker 04:
So it wasn't available.

[00:01:59] Speaker 04:
Doesn't that get your argument?

[00:02:03] Speaker 01:
I think not, Your Honor, because there are a couple of things that we think that the Veterans Court missed.

[00:02:10] Speaker 04:
You don't have Brown in your camp.

[00:02:12] Speaker 01:
We respect that, Your Honor.

[00:02:14] Speaker 01:
And we are not relying on post-1996 decisions in order to say that the court and, in fact, the agency made

[00:02:24] Speaker 01:
a clear and unmistakable error in 1971.

[00:02:27] Speaker 01:
What we point to is actually the language of the regulations themselves.

[00:02:30] Speaker 01:
So the Veterans Court took the position that because 4.14 was considered to be ambiguous at the time, that anti-permitting rule allowed the agency to determine that a missile that passed through one section of the body in order to ultimately lodge in a different section

[00:02:49] Speaker 01:
the agency could rate just the final destination of that missile, in this case the muscle group of the chest cavity, rather than and without rating the other systems that that missile passed through to reach that body, which in this case was the skin.

[00:03:07] Speaker 01:
We point to a couple of reasons why that's an impermissible

[00:03:13] Speaker 01:
conclusion now and would have been impermissible in 1971 and against the canons of construction that existed then as they do now.

[00:03:21] Speaker 00:
One of which we addressed extensively in the brief, which is by taking this approach, the agency- I'm sorry, just so I understand your point of view, are you saying that the RO in 1971 did not take into account Mr. Frye's scar when it was making an assessment about how much benefits to give him for the musculoskeletal injury?

[00:03:42] Speaker 01:
I think the answer to that question is both yes and no, Your Honor.

[00:03:46] Speaker 00:
They do say SCAR among the other things that they saw that were problematic.

[00:03:52] Speaker 01:
That's correct.

[00:03:53] Speaker 01:
And we believe that section 4.56 of the code as it existed back then does direct them to take into account the SCAR.

[00:04:05] Speaker 01:
But it's not for the purpose that the government has argued here.

[00:04:08] Speaker 01:
If you look at the exact language of that provision,

[00:04:10] Speaker 01:
It tells the VA that it must take into account the scars that exhibit the entrance and exit wounds in order to determine the path of missile travel.

[00:04:18] Speaker 03:
Well, how do we know that they only relied on that provision?

[00:04:23] Speaker 03:
We don't, Your Honor.

[00:04:24] Speaker 03:
Well, that's the problem.

[00:04:25] Speaker 03:
It seems to me there's general language about scars.

[00:04:29] Speaker 03:
And we really can't tell from that whether the RO in 1971 failed to consider this painful scarring

[00:04:39] Speaker 03:
rating provision, right?

[00:04:42] Speaker 01:
Your Honor, I think that as the code reads, the RO would have had to take this car into account for both purposes, but for different reasons.

[00:04:50] Speaker 03:
Yeah, but your problem is maybe they did take it into account for both purposes, and can we really tell from the 1971 RO decision that they didn't do that?

[00:05:02] Speaker 01:
I think the crux of the problem, first let me answer that question.

[00:05:05] Speaker 01:
I don't know that we can

[00:05:07] Speaker 01:
that I can positively answer that question.

[00:05:09] Speaker 01:
I can't look to anything in the record and say that they took the SCAR into account with respect to rating under 5303 and also took the SCAR into account and decided not to rate under 7804.

[00:05:21] Speaker 01:
What our argument is, Judge, is that even if they took it into account in both respects, they are still prohibited by the plain language of the regulations from

[00:05:32] Speaker 01:
not providing the second rating to the second body system.

[00:05:36] Speaker 01:
And the reason for that is because 4.14 is a general regulation that is intended to provide guidance with respect to what the VA and the rating officer does in general.

[00:05:47] Speaker 01:
It contains language within it that directs the rating officer to then look to the specific body systems for special instructions.

[00:05:53] Speaker 03:
Excuse me.

[00:05:54] Speaker 03:
The problem is that if they'd said in 1971,

[00:05:59] Speaker 03:
that the anti-pyramid regulation requires that we look to only one of these scar provisions and not to the other one, then you might have an argument that the construction that was adopted later on should have been adopted in 1971.

[00:06:13] Speaker 03:
I mean, I can understand that argument.

[00:06:16] Speaker 03:
The problem is that I can't tell what the RO did, and I can't tell that they relied on the anti-pyramid regulation or that they made a mistake in that respect.

[00:06:29] Speaker 01:
Well, I think, Your Honor, that gets to a different issue, which we have been, and we pointed out in the brief, we've been taking issue with from the outset, is that we can't tell that either, and it appears to us that the board... How can you get Q without being able to tell that?

[00:06:41] Speaker 04:
It has to be clear and unmistakable.

[00:06:44] Speaker 01:
Your Honor, we think that the clear and unmistakable evidence is that you've got a specific regulation that says when looking at the skin body system, you must rate at 10% if these objective findings exist.

[00:06:58] Speaker 01:
I know that the government has said that there's a question of that.

[00:07:01] Speaker 01:
And we pointed out in our reply brief to where they have made a concession at the lower level that those conditions do exist or did exist in 1971.

[00:07:09] Speaker 01:
Our position has been under the rules of construction, the general provision that is provided in 4.14 doesn't, it is trumped by the specific provision that exists in DC 7804.

[00:07:28] Speaker 01:
Did I answer your question, Your Honor?

[00:07:31] Speaker 03:
Well, I think you did.

[00:07:33] Speaker 03:
But it seems to me that we're all agreed that we really can't tell what the RO did in 1971.

[00:07:41] Speaker 03:
And without knowing what they did, it's hard to know whether there's clear and unmistakable error.

[00:07:47] Speaker 01:
I think, Your Honor, our position with respect to that is what we know that the board did in 1971 is they chose not to rate the skin, the skin condition.

[00:07:58] Speaker 01:
They looked at this gentleman who had a nine inch long, one inch wide scar on his chest that everybody agrees was painful.

[00:08:04] Speaker 01:
And they said, even though the regulation says we must rate this, we're going to eschew the specific and mandatory language in 7804.

[00:08:14] Speaker 01:
And we will defer to our interpretation of the more global broad language in 4.14.

[00:08:22] Speaker 01:
And our argument is that the rules of construction don't allow

[00:08:27] Speaker 01:
the VA to do that now.

[00:08:28] Speaker 01:
They would not have allowed the VA to reach that conclusion back in 1971.

[00:08:32] Speaker 01:
And the fact that it reached that conclusion, in this case, despite the language in 4.14 telling the VA to look at the specific instructions, despite the mandatory language in the specific instructions, constitutes a clear and unmistakable error under the case law that's been established.

[00:08:53] Speaker 03:
OK.

[00:08:53] Speaker 03:
I want to save the rest of your time for rebuttal.

[00:08:55] Speaker 03:
Yes, Your Honor.

[00:08:55] Speaker 03:
Thank you.

[00:09:03] Speaker 03:
Ms.

[00:09:03] Speaker 03:
Moses?

[00:09:04] Speaker 02:
Morning, Your Honors, and may it please the Court.

[00:09:08] Speaker 04:
Assemblyman Brown.

[00:09:10] Speaker 04:
Estabend B. Brown.

[00:09:12] Speaker 04:
The Veterans Court explained that even under 38 CFR 4.14's anti-perimitting provision, a claimant is entitled to separate disability ratings where none of the symptomology for any of the conditions is duplicative of or overlapping with the symptomology of the other two conditions.

[00:09:33] Speaker 04:
Where'd that test come from?

[00:09:36] Speaker 04:
That anti-pyramid rule that you're... The overlapping, that none of the symptomology is duplicative or overlapping.

[00:09:46] Speaker 04:
Where did that symptomology test come from?

[00:09:48] Speaker 04:
Did the Esteban court derive it from the plain language of 4.14?

[00:09:54] Speaker 02:
That rule, that language has always existed.

[00:09:58] Speaker 02:
What Esteban, the court in Esteban did was just to clarify

[00:10:03] Speaker 02:
that when there is not overlapping or duplicative symptomatology, that separate rating should be assigned.

[00:10:12] Speaker 02:
And that the VA's old practice of looking at the predominant sort of injury or the manifestation of symptoms and rating it under the highest possible rating score that they could for one disabling condition should not be the practice anymore.

[00:10:30] Speaker 02:
to here is reflected in what the rating officer did in this case.

[00:10:35] Speaker 02:
I do want to address one point here about the scar.

[00:10:40] Speaker 02:
And Mr. Frye's claim that he was entitled to receive a 10% rating under that.

[00:10:48] Speaker 02:
And to clarify, Your Honors, that we do not concede that Mr. Frye met the rating criteria for under 7804.

[00:10:56] Speaker 02:
Then or now?

[00:11:00] Speaker 02:
I'm sorry?

[00:11:01] Speaker 04:
Then or now?

[00:11:03] Speaker 02:
Well, what's only important to the clear and unmistakable standard is what happened at the time that the decision was made.

[00:11:11] Speaker 04:
Oh, that wasn't my question, though, was it?

[00:11:13] Speaker 02:
No, Your Honor.

[00:11:14] Speaker 02:
I apologize if I didn't answer your question.

[00:11:16] Speaker 02:
I thought that I had.

[00:11:17] Speaker 04:
I said then or now.

[00:11:19] Speaker 04:
Oh.

[00:11:20] Speaker 04:
Now.

[00:11:22] Speaker 04:
Post.

[00:11:22] Speaker 04:
Post.

[00:11:23] Speaker 02:
He may need it now.

[00:11:24] Speaker 02:
I don't know.

[00:11:26] Speaker 02:
What we're looking at here is whether he met it in 1971.

[00:11:30] Speaker 02:
and looking at the medical examination report on which the rating officer relied upon, which is that joint appendix page 68.

[00:11:39] Speaker 02:
The physician who examined Mr. Fry in 1971 notes, yes, that the scar is tender throughout, but doesn't make any objective findings with respect to the scar being painful.

[00:11:53] Speaker 02:
And to meet the rating criteria under 7804,

[00:12:00] Speaker 02:
The scar has to be painful and tender on objective examination.

[00:12:07] Speaker 02:
And there's no evidence here that it was painful.

[00:12:11] Speaker 02:
So Mr. Frye cannot demonstrate with any certainty that he met the criteria for a 10% rating for the scar under diagnostic code 7804.

[00:12:21] Speaker 04:
I find the government's cavalier attitude towards

[00:12:30] Speaker 04:
The veterans, the agency is supposed to be helping, disturbing.

[00:12:37] Speaker 04:
Your use of the word may, for example, well, he may need it now.

[00:12:43] Speaker 04:
And while it was tender, it may not have been painful, you're dealing with people who were torn to pieces in the service of their country.

[00:13:00] Speaker 04:
And it just seems to me that there ought to be a higher level of sensitivity.

[00:13:10] Speaker 02:
I understand, Your Honor.

[00:13:15] Speaker 02:
The maximum rating that was assigned, the 40% under 5303, does reflect that the rating officer took into consideration many factors.

[00:13:26] Speaker 02:
Excuse me.

[00:13:31] Speaker 02:
as the rating decision itself reflects on joint appendix page 38 and 39, one of the first disabling, I'm sorry, it's at the bottom of appendix page 38, the first disabling condition that the rating officer indicates is scar.

[00:13:53] Speaker 02:
And then, I think a helpful comparison here of the diagnostic criteria under 5303

[00:14:01] Speaker 02:
And the physical examination demonstrates that Mr. Fry may not have even met the rating criteria for a maximum rating of 40% under 5303.

[00:14:16] Speaker 02:
5303.

[00:14:17] Speaker 03:
So the 40% rating could include the 10% for the painful scar.

[00:14:25] Speaker 02:
Yes, Your Honor.

[00:14:26] Speaker 02:
And really in comparing the medical evidence that we have here

[00:14:31] Speaker 02:
And the rating criteria, the reasonable conclusion is that other factors were considered.

[00:14:39] Speaker 02:
And it wasn't just the muscle injury itself, that it was also the scar and maybe just other factors as well.

[00:14:48] Speaker 03:
Where do we find in the record the various provisions, the scar provisions, the rating criteria for the scar provisions, for scars?

[00:14:59] Speaker 02:
We included as an addendum.

[00:15:01] Speaker 02:
to our brief, Your Honor.

[00:15:05] Speaker 02:
We included, I believe, the entire part four, which is the entire schedule for rating disabilities.

[00:15:13] Speaker 03:
So which are the ones that apply to scars?

[00:15:16] Speaker 02:
We have the- Yes, that is- I believe the page numbers are at the bottom.

[00:15:22] Speaker 02:
And 7804 is the diagnostic code that governs the scar that

[00:15:29] Speaker 02:
That issue here, and that's on page 273 is at the bottom.

[00:15:33] Speaker 03:
OK, but I was more interested in the other provisions.

[00:15:38] Speaker 02:
Oh, sure, Your Honor.

[00:15:39] Speaker 02:
That is at page 242.

[00:15:41] Speaker 02:
242.

[00:15:44] Speaker 02:
Yes.

[00:15:45] Speaker 02:
We're in the right column.

[00:15:47] Speaker 03:
5303.

[00:15:50] Speaker 02:
Page.

[00:15:51] Speaker 03:
So there's quite a range there.

[00:15:54] Speaker 02:
Yes, Your Honor.

[00:15:55] Speaker 02:
And Mr. Frye received the highest rating available for severe

[00:15:59] Speaker 02:
of 40%.

[00:16:01] Speaker 02:
And one of the factors here... Well, we don't know that.

[00:16:04] Speaker 03:
Do we?

[00:16:05] Speaker 03:
Do we know that he received a 40% rating under this rating provision?

[00:16:10] Speaker 03:
Or is there a possibility that they got to the 40% by adding the painful and tender scar?

[00:16:20] Speaker 02:
No, Your Honor.

[00:16:21] Speaker 03:
We know that it's this one?

[00:16:24] Speaker 02:
Yes, Your Honor.

[00:16:24] Speaker 03:
How do we know that?

[00:16:25] Speaker 02:
The rating decision, which is on Appendix Page 38, if you look in the left column, what it does, it lists the diagnostic code that the rating officer assigned.

[00:16:39] Speaker 02:
And then if you look at the text that's across from it, it lists the disabling conditions.

[00:16:48] Speaker 03:
And then 5303 would be the diagnostic code, is that what you're saying?

[00:16:54] Speaker 04:
Yes, Your Honor.

[00:16:56] Speaker 04:
This is where it's CUE.

[00:16:59] Speaker 04:
It says scar, comma, and then shell fragmentation.

[00:17:06] Speaker 04:
Well, scar isn't 5303, I think is what Judge Deke is saying.

[00:17:13] Speaker 04:
You see what I'm saying?

[00:17:14] Speaker 02:
Yes.

[00:17:17] Speaker 02:
Let me go back to 5303.

[00:17:25] Speaker 02:
5303 more or less identifies an anatomical section of the body.

[00:17:32] Speaker 02:
It also doesn't exactly match with the disabling condition that the rating officer described because there just probably isn't one in the schedule.

[00:17:43] Speaker 04:
Unable to lie on your side and play sports and so on.

[00:17:45] Speaker 02:
So what the rating officers, I'm sure, still do is that they try to find the diagnostic code that's most analogous to the

[00:17:55] Speaker 02:
Conditions that are presented, but he does put scar in front of that And I think that is evidence that that was certainly a consideration by the rating officer, but that's what judge dyke is asking I think yes, I mean Scar is not within 53 out of three right that's correct But it is one of the things that the rating officer can consider when looking at that particular disabling condition, and it was also

[00:18:25] Speaker 03:
Well, but I'm not sure that I understand that, because the scar is not mentioned in 5303.

[00:18:31] Speaker 03:
Why is that a relevant consideration under 5303?

[00:18:36] Speaker 03:
I guess what I'm asking is, can this decision be read as actually awarding the 10% for the painful and tender scar, even though it lists this 5303 as the provision?

[00:18:56] Speaker 02:
Our position is that Mr. Fry would not have qualified under 7804 because there is no objective evidence of the scar being painful.

[00:19:08] Speaker 03:
If you're wrong about that, do you lose?

[00:19:14] Speaker 02:
No.

[00:19:14] Speaker 02:
Because comparing the rating criteria from 5303 and the medical evidence here, it reflects that

[00:19:24] Speaker 02:
the rating officer considered more than just the muscle injury itself.

[00:19:28] Speaker 02:
It's not absolutely clear that the rating officer did not consider the scar when rating, especially to assign him.

[00:19:41] Speaker 04:
He wrote scar into it.

[00:19:43] Speaker 02:
And to assign the most severe level for this particular condition

[00:19:50] Speaker 02:
when Mr. Fry's medical evidence often doesn't support that he had limitation of motion with respect to that area.

[00:19:57] Speaker 04:
The real answer is you don't know, and that's why it's CUE.

[00:20:00] Speaker 04:
I mean, or not CUE.

[00:20:04] Speaker 02:
It would not be CUE.

[00:20:05] Speaker 02:
Right, right.

[00:20:06] Speaker 04:
It doesn't fall within CUE.

[00:20:08] Speaker 02:
If it's not absolutely clear that a different result would have been sued, then Mr. Fry can just not meet his burden of establishing clear and unmistakable area.

[00:20:19] Speaker 03:
Right.

[00:20:19] Speaker 03:
OK.

[00:20:19] Speaker 03:
Thank you.

[00:20:20] Speaker 02:
If the court doesn't have any further questions, we respectfully request that the court affirm the Veterans Court's decision.

[00:20:29] Speaker 04:
Okay, Mr. West.

[00:20:31] Speaker 04:
And Council, I apologize if you think that was aimed at you.

[00:20:34] Speaker 04:
It's aimed at the agency.

[00:20:36] Speaker 04:
I just find this very painful.

[00:20:40] Speaker 01:
I wanted to take just a minute, Your Honors, to address the point that the court was just trying to get at, I think, as I understood it, which is whether

[00:20:48] Speaker 01:
Sergeant Frye would have qualified for the 40% rating under 50 through 303 absent that, whether we know he would have qualified absent that notation of SCAR within the rating sheet that's found.

[00:21:01] Speaker 03:
I don't think that's quite the question.

[00:21:02] Speaker 03:
I think the question is whether, having mentioned SCAR, which is not part of 5303, whether there's a possibility that they were upping the rating there to take account of the painful and tender nature of it.

[00:21:16] Speaker 01:
And we think the answer to that question, Your Honor, is clear.

[00:21:20] Speaker 01:
If the court takes a look at section 4.72, which is the proportion of the code that immediately precedes the 5303 diagnostic code, if you turn to page 242 within the section we were just looking at, the very last sentence on the left-hand column starts with, this section is to be taken as establishing entitlement to a rating of severe grade

[00:21:45] Speaker 01:
when there is a history of compound commuted fracture and definite muscle or tendon damage from the missile.

[00:21:55] Speaker 01:
We think that the record, as established in this case, shows that that includes a scar, a painful and tender scar.

[00:22:04] Speaker 01:
What we're saying, Your Honor, is that whether the scar was there or not,

[00:22:08] Speaker 01:
The VA would have been required to rate him at the highest level under that criteria, under that guidance that's given in 4.72.

[00:22:18] Speaker 01:
We also, as I mentioned earlier, believe that the VA

[00:22:21] Speaker 01:
was required to look at the scar, whether they took it into account or not, because the VA has to, as the guidance is given in 4.56, the VA has to look at the scar to determine scars, to determine what the path was that the missile traveled through the body, because it helps to determine the severity of the damage to the muscle underneath.

[00:22:42] Speaker 03:
Okay.

[00:22:43] Speaker 03:
Anything further?

[00:22:46] Speaker 01:
Thank you for your time today, Jeff.

[00:22:47] Speaker 01:
Okay.

[00:22:48] Speaker 03:
Thank you, Mr. Weir.

[00:22:49] Speaker 03:
Thank both counsel.

[00:22:50] Speaker 03:
The case is submitted.