[00:00:00] Speaker 03:
The case is Timothy Hapnake versus the United States, 2018-22-67.

[00:00:04] Speaker 03:
Mr. Perry, when you are ready.

[00:00:51] Speaker 02:
Morning, Your Honor, and may it please the Court.

[00:00:54] Speaker 02:
This Court should reverse and remand the decision of the trial court because the PDBR, the Physical Disability Board, review used negative evidence, the lack of medication records and other treatment records.

[00:01:06] Speaker 01:
Let me clarify something, OK?

[00:01:09] Speaker 01:
In describing the contested motion before the Court of Federal Claims, Mr. Hatmaker refers to it interchangeably as a motion to complete the administrative record and a motion to supplement

[00:01:21] Speaker 01:
the administrative record.

[00:01:23] Speaker 01:
Is it fair to say both those were the same thing and incorrectly construed by the court as being the same thing?

[00:01:35] Speaker 02:
As for practical effect, I think there is no difference in this instance, Your Honor.

[00:01:41] Speaker 01:
So that's the sole issue, really, whether it revolves around whether the administrative record should have been supplemented.

[00:01:49] Speaker 01:
Yes, Your Honor.

[00:01:51] Speaker 02:
Well, the importance of that is that the PDBR, in rendering its decision, its second addendum to its original, so its third try at addressing Mr. Hatmaker.

[00:02:04] Speaker 01:
Let me ask you another housekeeping question, OK?

[00:02:08] Speaker 01:
The government says that one of the 15 pages Mr. Hatmaker seeks to supplement was, in fact, already admitted as evidence.

[00:02:16] Speaker 01:
Is that correct?

[00:02:17] Speaker 01:
Yes, Your Honor.

[00:02:18] Speaker 01:
OK.

[00:02:18] Speaker 01:
Thank you.

[00:02:19] Speaker 04:
What probative value would those records have in any event?

[00:02:23] Speaker 04:
I mean, because as I understood it, the Court of Claims said that they wouldn't.

[00:02:29] Speaker 02:
And we, of course, disagree, and that's really the point.

[00:02:33] Speaker 02:
The Court said it had no probative value.

[00:02:36] Speaker 02:
We believe it does because the PDBR in rendering its decision made two points.

[00:02:40] Speaker 02:
It said the severity of Mr. Hatmaker's condition would not have been that great with a lack of

[00:02:47] Speaker 02:
prescriptions and other treatment records.

[00:02:50] Speaker 02:
So it discounted the severity of the conditions in the first place, which impact the underlying question for the board as to the fitting nature or unfitting nature of his disabilities, both the vertigo and the OCD.

[00:03:03] Speaker 02:
Now the vertigo is already conceded and as part of the record is unfitting, but the combined nature of the OCD with that, especially as it relates to the impact of his ability to drive, which is an issue that the PDBR

[00:03:16] Speaker 04:
So you're saying that these records just show that he was on a lot of prescription medication and maybe shouldn't have been able to drive?

[00:03:23] Speaker 02:
That in addressing the PDBR's contention that two things, the severity of his condition was obviously not that grave because there was a lack of these prescriptions in the record, but also the

[00:03:35] Speaker 02:
in two places, in the PDBR's third decision, or addendum to its first decision, but its third time around, a question of Mr. Hatmaker's credibility.

[00:03:46] Speaker 02:
And there's also discussion in the record of, in the PDBR's decision, of the importance of the records as supporting or undercutting his credibility, and his decision being based on its view of his credibility.

[00:04:00] Speaker 02:
So in

[00:04:01] Speaker 02:
attributing the lack of these records as undermining his... Well, what about the prescriptions relates to his vertigo or the severity of his vertigo?

[00:04:11] Speaker 02:
There's a scopolamine patches.

[00:04:13] Speaker 02:
There's several several lenses there.

[00:04:14] Speaker 02:
There's also an ER record.

[00:04:16] Speaker 02:
It's not all prescriptions.

[00:04:17] Speaker 02:
There's also the emergency room records where he went to seek treatment after a particularly bad episode.

[00:04:23] Speaker 02:
And then there is the OCD medications, the mental health medications as well, which was more specifically referenced by the PDBR as lacking.

[00:04:38] Speaker 04:
Can you explain why you think that

[00:04:40] Speaker 04:
416B applies to the Air Force?

[00:04:46] Speaker 04:
Putting aside any questions.

[00:04:47] Speaker 01:
It's a VA reg, right?

[00:04:49] Speaker 02:
Yes, Your Honor.

[00:04:51] Speaker 02:
So how does it apply the PDBR?

[00:04:56] Speaker 02:
From 2008 in the National Defense Authorization Act, Congress has stated that the military departments and the secretaries must apply the VA regulations to decisions as to unfitness, fitness and ratings under Chapter 61 of 10 U.S.

[00:05:12] Speaker 02:
Code.

[00:05:13] Speaker 02:
So all of the, what's so called the Vassar D or the VA schedule for rating disabilities is

[00:05:22] Speaker 02:
while directed at the VA facially is also applicable to the military departments.

[00:05:29] Speaker 02:
And in fact, the Air Force through the PDBR did address several VA regulations.

[00:05:38] Speaker 02:
There's a couple of references, especially interpretation of reports.

[00:05:41] Speaker 02:
They cited themselves in their decision 4.2.

[00:05:44] Speaker 02:
So that demonstrates that the VA further that not only does it apply, but also that the Air Force treats it as it applies.

[00:05:50] Speaker 02:
to them the VA schedule.

[00:05:54] Speaker 04:
Can you show me where you raised that issue in the record below?

[00:05:57] Speaker 04:
I know you raised 416A, but where is your reference to 416B?

[00:06:03] Speaker 02:
Okay, so in the complaint paragraphs 15 through 16,

[00:06:11] Speaker 02:
There is not, to clarify your honor, there is not a specific, we did not say 416B applies prior to the final decision of the PDBR.

[00:06:21] Speaker 02:
We raised it generally.

[00:06:22] Speaker 02:
We said 14, we asked for, in the PDBR application originally, we asked for a consideration for unemployability generally and we cited 4.16.

[00:06:33] Speaker 02:
Now there's two subsections there, but by logical application, if we're not limiting it in any way ourselves, it should apply that it should be read to mean that we mean the entire section to apply.

[00:06:45] Speaker 04:
Did you develop that argument in the court of claims?

[00:06:52] Speaker 01:
As to whether it applies or whether

[00:06:54] Speaker 01:
One that, having raised 416, it implicated both.

[00:06:59] Speaker 02:
Yes, Your Honor.

[00:07:00] Speaker 02:
In our final brief to the court and our motion, cross-motion for judgment on the administrative record, then also we raised it in the motion for reconsideration.

[00:07:11] Speaker 02:
So Your Honor, if I'm just not sure I'm answering your question right.

[00:07:16] Speaker 04:
Well, I mean, I can see that you mentioned it in the motion for reconsideration, but all of your arguments below

[00:07:23] Speaker 04:
quoted 416A, talked about 416A, I mean why isn't the government correct that until the motion for reconsideration 416B doesn't even come up so why are we looking at it?

[00:07:37] Speaker 02:
The PDBR itself never addressed 416 at all until the third decision.

[00:07:43] Speaker 02:
And when it did, it only addressed part A. So we didn't have an opportunity or a need to raise it other than maybe obliquely we raised it as to errors that the PDBR should address.

[00:07:56] Speaker 02:
But they never addressed it directly until the third time they looked at it.

[00:07:59] Speaker 02:
And then at that third time, they only addressed A.

[00:08:03] Speaker 02:
So when we first came back after the decision on remand to the Court of Federal Claims, we raised the issue.

[00:08:10] Speaker 02:
We said, well, yes, the PDBR did finally address 416 as to unemployability as to A, but just did not address at all B. And that essentially was our argument.

[00:08:20] Speaker 02:
There wasn't anything else to argue about because there was no development of the record or analysis by the PDBR.

[00:08:26] Speaker 03:
But it was your burden to raise issues, not to support them.

[00:08:31] Speaker 02:
Correct, Your Honor.

[00:08:33] Speaker 02:
So from the complaint going forward, and actually in the first application of the PDBR back in 2012, we raised the issue generally 4.16.

[00:08:44] Speaker 02:
Until 2017, the PDBR never addressed the issue at all.

[00:08:49] Speaker 02:
until it came out with analysis as to 4.16a.

[00:08:51] Speaker 02:
And so that was our first opportunity, or need to, or ability to, because as you say, this is the third time around.

[00:09:00] Speaker 03:
And you're saying the first time 416b came up was a motion for reconsideration the third time.

[00:09:07] Speaker 03:
That's a bit late.

[00:09:10] Speaker 02:
Actually, Your Honor, in our cross-motion for judgment on the administrative record, we raised the issue of unemployability as well.

[00:09:17] Speaker 02:
It wasn't until the footnote six of the court's decision memo where it disposed of the argument and said, we waived it.

[00:09:29] Speaker 02:
And I think that's an important issue, Your Honor, is that the question is, of course, whether we waived it.

[00:09:35] Speaker 02:
If we did not waive it, then there's further analysis and development that should happen.

[00:09:40] Speaker 02:
If we did waive it, then we've got no argument.

[00:09:42] Speaker 02:
We waived it.

[00:09:45] Speaker 02:
Mr. Hatmaker argues that it's very clear since the first application from the PDBR, he raised the issue of unemployability.

[00:09:54] Speaker 02:
He raised it actually under two sections.

[00:09:55] Speaker 02:
He raised it under the DOD instruction as well as the VA regulation, 38 CFR.

[00:10:03] Speaker 02:
Moving through to the complaint, we raise it again.

[00:10:05] Speaker 02:
It's never addressed, never addressed.

[00:10:07] Speaker 02:
We discuss it.

[00:10:09] Speaker 02:
And then the PDBR finally does address it.

[00:10:14] Speaker 02:
So that's the first real time that it came up, Your Honor.

[00:10:22] Speaker 01:
If you raise it in the complaint, why don't you argue it prior to their raising it?

[00:10:31] Speaker 02:
Because of the administrative nature of the underlying proceeding at the PDBR, there isn't an opportunity until the administrative record comes together.

[00:10:40] Speaker 02:
So there's nothing relevant to talk about there until the third time around when they are.

[00:10:58] Speaker 02:
And again, coming back to the importance of the records coming in, the relevance and why they're needed for a judicial review.

[00:11:08] Speaker 02:
The problem with the questioning of Mr. Hatmaker's credibility also goes to both the vertigo and the OCD conditions.

[00:11:17] Speaker 02:
So the PDBR and its decision talked about both as we're unable to make determinations as to credibility in a vacuum, but given the lack of contemporaneous records and the treatment that you would expect from providers.

[00:11:32] Speaker 04:
You had those records all along, right?

[00:11:36] Speaker 02:
Yes, Your Honor.

[00:11:37] Speaker 02:
Yes.

[00:11:38] Speaker 04:
So why wouldn't you think that, you know, especially after the first remand, why wouldn't you have submitted those?

[00:11:45] Speaker 02:
At that point, the PDBR had not addressed any lack of prescription records or other treatment records as an issue in the case.

[00:11:54] Speaker 04:
These are records that anyone reasonably could think would support one's credibility or that would be relevant to

[00:12:00] Speaker 04:
the conditions that you're arguing, so why not submit them?

[00:12:03] Speaker 04:
I mean, at some point, isn't there the right to say, too little, too late?

[00:12:10] Speaker 02:
In the context of a normal trial at district court level, yes, absolutely.

[00:12:15] Speaker 02:
However, in an administrative remand case where the government provides the administrative record, the government assembles the records of all the files in the case that were considered by the agency on the original decision and then supplemented as going forward perhaps with other remand.

[00:12:34] Speaker 04:
But is it your position that any time a rationale is cited by

[00:12:40] Speaker 04:
the PDBI or any administrative agency that you then have the right to go back and seek to refute that rationale with additional records even if they've been in your possession all along.

[00:12:55] Speaker 01:
Or to put it another way, don't you have the burden of presenting evidence which is in your possession which you believe supports your case and clearly you believe that those additional medications support your case.

[00:13:10] Speaker 02:
Not in the context of an administrative remand to the military correction boards, Your Honor, because there's two factors there.

[00:13:20] Speaker 02:
One is, do we have possession in the first case?

[00:13:21] Speaker 02:
So if we don't have possession, then the whole question goes away.

[00:13:24] Speaker 02:
So we have to have that as a predicate.

[00:13:25] Speaker 01:
But the second one is- But an applicant says, I suffer from this whatever condition is.

[00:13:33] Speaker 01:
And by the way, I not only got treatment

[00:13:39] Speaker 01:
within the military record system, but I had to go out and get treatment elsewhere.

[00:13:45] Speaker 01:
It seems to me that cries out for saying, and here's the records of that.

[00:13:50] Speaker 02:
If that were relevant to a normal determination, your normal step-by-step determination of the issues are whether or not a condition is unfitting in the first place.

[00:13:58] Speaker 02:
And then if it's unfitting, then you apply the VA standards.

[00:14:01] Speaker 02:
Prescription treatment for either condition is not a predicate for unfitness, certainly, in the abstract.

[00:14:10] Speaker 02:
And then on top of that, it doesn't impact the rating determination, except for there is some

[00:14:18] Speaker 02:
lower percent ratings under the.

[00:14:20] Speaker 01:
But it's surely supportive of the applicant's position, is it not?

[00:14:27] Speaker 02:
As things develop, ultimately, yes, Your Honor, but in the first instance, until the PDBR came up and said,

[00:14:35] Speaker 02:
You know, one, the lack of these records is something that concerns us.

[00:14:40] Speaker 02:
The government should assemble the administrative record and make its decision on that.

[00:14:44] Speaker 02:
So this is the issue of the negative evidence.

[00:14:46] Speaker 02:
By going outside of the record and saying that

[00:14:50] Speaker 02:
We make these findings based on what's not there.

[00:14:52] Speaker 02:
The PDBR should have been confined to what it actually did look at.

[00:14:56] Speaker 02:
And it could have said, well, these don't support that.

[00:14:59] Speaker 02:
But it can't say, because these records that may or may not exist are not present.

[00:15:07] Speaker 02:
That was the burden on the government and as part of the administrative record assembly.

[00:15:12] Speaker 02:
So to answer your honor's question, no, the burden is on the government to assemble the administrative record.

[00:15:17] Speaker 03:
Council, your time has almost expired, including that which you wish to save.

[00:15:22] Speaker 03:
We'll let you have two minutes for rebuttal time.

[00:15:25] Speaker 03:
And let's hear from the government, Mr. Dillingham.

[00:15:32] Speaker 00:
Your honor, may it please the court?

[00:15:34] Speaker 00:
This case is not about Mr. Hattmaker's medical condition.

[00:15:37] Speaker 00:
It's not about whether he should get more pay.

[00:15:40] Speaker 00:
It's not whether he served his country admirably.

[00:15:42] Speaker 00:
It's not whether he'll be taken care of by the Veterans Administration.

[00:15:44] Speaker 00:
It's simply whether Judge Patricia Campbell-Smith, abused her discretion and failing to A, allow Mr. Hattmaker to submit more documents, have an eighth hearing.

[00:15:54] Speaker 00:
There were four before the Court of Federal Claims.

[00:15:56] Speaker 00:
There were three before the PDBR.

[00:15:59] Speaker 04:
Do the government have all these prescription records?

[00:16:06] Speaker 00:
The ones that were at issue were ones that I think were his private civilian records.

[00:16:11] Speaker 00:
So the record opens when in 2005, so November 2012, so now we're five years after Mr. Hatmaker leaves the military, he submits an application.

[00:16:20] Speaker 00:
The application form specifically says you will be given at least two weeks to submit documents.

[00:16:25] Speaker 00:
It says if you make no specific assertion, the board will search the record.

[00:16:28] Speaker 00:
It has.

[00:16:29] Speaker 00:
The military is required, the affected service, the Air Force here is required to supply the service record.

[00:16:35] Speaker 04:
So that's why it's important.

[00:16:36] Speaker 04:
So that's what I'm saying is, did the government fail to include these records in the administrative record it was required to put together?

[00:16:44] Speaker 00:
No, Your Honor.

[00:16:45] Speaker 00:
It's really not my understanding.

[00:16:46] Speaker 00:
These are not military records.

[00:16:47] Speaker 00:
These are private records that were obtained from either after Mr. Hatmaker left the service or were through a private physician, Dr. Malagon, for example, a family physician he'd been seeing for some time.

[00:17:01] Speaker 00:
There were some records from him.

[00:17:04] Speaker 00:
And so at issue are the 12 documents that he submitted to Judge Campbell Smith.

[00:17:09] Speaker 00:
She said that she looked at those to discern whether they would have made any difference in light of the nature of the board's analysis.

[00:17:16] Speaker 00:
They would not have.

[00:17:18] Speaker 00:
They fell under three different categories.

[00:17:20] Speaker 00:
One, Mr. Hatmaker said, well, there's some speculation in the record as to when I first began to take OCD medication.

[00:17:27] Speaker 00:
I'm sorry, take the OCD medication.

[00:17:32] Speaker 00:
It's a telegram.

[00:17:33] Speaker 00:
The board said in an offhanded remark, he first began taking it in 2007.

[00:17:37] Speaker 00:
This appeared to be connected with gallbladder surgery he received.

[00:17:41] Speaker 00:
He referred to that as speculation.

[00:17:42] Speaker 00:
It really didn't amount to much of anything.

[00:17:44] Speaker 00:
And Judge Smith found that, in fact, when she looked at the document that was submitted, that indicated he did have gallbladder surgery at that time.

[00:17:51] Speaker 00:
That really confirmed what the board had said, but it was really no part of the board's analysis.

[00:17:55] Speaker 04:
Why isn't the scalamine patch relevant to vertigo?

[00:17:58] Speaker 00:
So it is.

[00:18:00] Speaker 00:
That particular document was offered for the purpose, as Mr. Hatmaker explained, to refute negative evidence by the board at 8296 in our appendix here, that there was a suggestion that his citalopram

[00:18:14] Speaker 00:
was not filled after February 2007.

[00:18:18] Speaker 00:
He then offered eight documents.

[00:18:20] Speaker 00:
He described this in his motion to correct the administrative record of page 326 of our record here.

[00:18:26] Speaker 00:
And that patch was one of them.

[00:18:30] Speaker 00:
It wouldn't really have amounted to anything.

[00:18:32] Speaker 00:
In other words, he offered it with respect to OCD.

[00:18:35] Speaker 00:
But that patch has nothing to do with OCD.

[00:18:38] Speaker 00:
from my now education on this having reviewed this record, it clearly does have to do with vertigo.

[00:18:42] Speaker 00:
But the fact that a patch was suggested as a prescription at some point means nothing.

[00:18:48] Speaker 00:
The nature of the board's analysis was they looked very careful at the nature of vertigo, and there were two that were at issue.

[00:18:52] Speaker 00:
One was vestibular disequilibrium, basically an effect on the ear, which is described according to the medical literature as having

[00:19:02] Speaker 00:
coming on very quickly, inconsistent with his reports and his medical records, and then sort of subsiding over time.

[00:19:12] Speaker 00:
A vertigo which was described by the VA was benign paroxysmal positional vertigo, described as lasting only minutes if you stand up quickly or you shake your head or something like that.

[00:19:24] Speaker 00:
And so that's not the sort of thing that really makes any difference, but was important not only understanding the nature of the etiology of those diseases, what was important was understanding whether these had any effect on his surface.

[00:19:36] Speaker 00:
And they apparently did not.

[00:19:39] Speaker 00:
In fact, when you went to the VA in 2008, having left the service five or six months earlier, his first rating was for 10%.

[00:19:48] Speaker 00:
I think it was only 10%.

[00:19:50] Speaker 00:
0% I'm sorry 0% and that was consistent with a disease that can or a condition that can sort of come and go so there was There was really nothing there.

[00:19:59] Speaker 00:
So the bottom line on this Business is the documents he offered really didn't change the record at all.

[00:20:06] Speaker 00:
The other documents he did offer with respect to OCD were Again, the question was whether there was an error in referring to the fact that he had not taken citalopram after February of 2007 and

[00:20:18] Speaker 00:
But the board record contained other evidence that he was taking other kinds of drugs.

[00:20:22] Speaker 03:
What about the relevance of 416B?

[00:20:27] Speaker 00:
As the Court has been discussing with Mr. Perry, it's up to the party to raise it.

[00:20:33] Speaker 00:
So no doubt he referred to 416 generally in his brief.

[00:20:37] Speaker 00:
As Judge Smith observed, the language that he used closely, very closely, mirrors 416A and a DOD regulation that basically says the same thing.

[00:20:48] Speaker 00:
It says if there's a combination of diseases, and in this case he actually was given

[00:20:53] Speaker 00:
relief in 2010 under 416A.

[00:20:56] Speaker 00:
The VA there noted that he had, what's required is if you have more than one rateable disease that wouldn't be rated at least 40 percent and in total the rest of them amount to 70 percent and on that basis he was awarded 100 percent.

[00:21:12] Speaker 00:
having already been at 90% in 2010.

[00:21:13] Speaker 00:
So 416A has always been in the picture.

[00:21:17] Speaker 00:
It's where he stands now in respect to his rating, at least as far as this record is concerned.

[00:21:22] Speaker 00:
It's what he mirrored both in his application to the board and his identical description of what he was doing, again, mirroring the language of 416A without naming it.

[00:21:30] Speaker 00:
And then, finally, he referenced it specifically in his first motion for judgment on the administrative record.

[00:21:36] Speaker 00:
He specifically said 416A.

[00:21:38] Speaker 00:
That caused Judge Campbell-Smith, understandably, as she explained in her reconsideration motion, to focus on 416A, and she described it in quite some detail.

[00:21:47] Speaker 00:
The question there was whether 416A should control, because it has this

[00:21:52] Speaker 00:
There's this arithmetic behind it that in order to get total disability, you have to have at least one disease with 40 and a total of 70.

[00:21:58] Speaker 00:
There's other ways to get it as well.

[00:22:00] Speaker 04:
I don't really understand your argument that even though 416A applies to the air force, that 416B does not.

[00:22:09] Speaker 04:
Is that really the position you're taking?

[00:22:11] Speaker 00:
So Novostil is the case we cited, saying if you don't raise it, then, as Dr. Campbell said, understandably,

[00:22:17] Speaker 00:
the court and the board will focus on that, and that's what they did.

[00:22:21] Speaker 00:
When she did focus on it in her very first decision, there was no further mention of it in the second motion for judgment administration.

[00:22:30] Speaker 04:
Well, I understand your waiver argument.

[00:22:31] Speaker 00:
Yeah.

[00:22:31] Speaker 04:
OK, so you just answered me with another waiver argument.

[00:22:35] Speaker 04:
What I don't really understand is, and maybe you're not really making this argument, but do you really contend that 416B does not apply to the Air Force, even though 416A clearly does?

[00:22:47] Speaker 00:
So the argument we've made, yeah, that's been our position.

[00:22:49] Speaker 00:
The argument that we made was that 416B is different in nature.

[00:22:52] Speaker 00:
416A definitely applies.

[00:22:54] Speaker 00:
It's a rating provision.

[00:22:55] Speaker 00:
The Air Force, the DOD, has definitely adopted that.

[00:22:58] Speaker 00:
So when you're into the 30s, the 50s, the 60s, the 70s, you're going to do it the way the VA does it, basically.

[00:23:03] Speaker 00:
416B says it's the policy of the VA.

[00:23:06] Speaker 00:
And perhaps that wouldn't be a distinguishing factor there.

[00:23:09] Speaker 00:
But then it goes on to say, if someone is unemployable, basically, and there was no evidence of that when he was in the military.

[00:23:16] Speaker 00:
actually employed then, he was in the military.

[00:23:18] Speaker 00:
And the record can suggest he's been employed since then, although now apparently his troubles are such that he finds it very difficult to get employed.

[00:23:26] Speaker 00:
But that was not the case back in 2007 when he left the service.

[00:23:30] Speaker 00:
Anyway, it says the record will be sent on to the director of compensation services of the VA.

[00:23:35] Speaker 00:
This is not particularly, you wouldn't expect that the DOD would, at least under the regulation then, would be sending documents on to the VA to determine whether a soldier or whether a service member

[00:23:47] Speaker 00:
is disabled to one degree or another while they wait for his release from active duty.

[00:23:54] Speaker 00:
He was scheduled to be released from active duty in May of 2007.

[00:23:58] Speaker 00:
The informal PEB had met, and they were waiting for him to decide whether to appear before the informal PEB.

[00:24:04] Speaker 03:
Would you say that PE doesn't apply by its terms?

[00:24:07] Speaker 03:
At first, it doesn't.

[00:24:10] Speaker 03:
It states a policy.

[00:24:12] Speaker 03:
And then it says rating board should submit to the director.

[00:24:17] Speaker 03:
schedule of consideration all cases of veterans who are unemployable.

[00:24:22] Speaker 00:
That's right.

[00:24:23] Speaker 03:
Is this not such a case?

[00:24:25] Speaker 00:
It certainly was not in 2007.

[00:24:27] Speaker 00:
And in fact, even when he was rated as employable by the VA, it apparently was done under 416A.

[00:24:37] Speaker 01:
Did I hear you say in passing that he totaled 90 and so you treated it as 100?

[00:24:44] Speaker 00:
I'm sorry, it did it.

[00:24:45] Speaker 01:
Did I hear you say in passing that when the calculation was done it totaled at 90%?

[00:24:52] Speaker 00:
Eventually it got to 90%.

[00:24:54] Speaker 01:
And then it was treated as 100 because it was

[00:24:57] Speaker 00:
That's right, and this was in 2010.

[00:25:01] Speaker 00:
His first appearance before the VA or his first submission to the VA was in January 2008.

[00:25:05] Speaker 00:
He was raided on April 22, 2008.

[00:25:07] Speaker 00:
This appears to the record at 663.

[00:25:10] Speaker 00:
He was zero for vertigo, which was the only rated condition, the only unfitting condition coming out of the Air Force.

[00:25:16] Speaker 00:
10% for OCD, 50% for sleep apnea, and then asthma was deferred basically.

[00:25:23] Speaker 00:
Asthma later on was rated at 10.

[00:25:26] Speaker 00:
And eventually, he got up to 90.

[00:25:31] Speaker 00:
And that was sometime later.

[00:25:33] Speaker 00:
So March 3, 2009.

[00:25:35] Speaker 00:
So now he's out of the service more than a year, a year and a half, something of that nature.

[00:25:39] Speaker 00:
It appears that 754 of the appendix, he was 90% then.

[00:25:44] Speaker 00:
Vertigo, 30%.

[00:25:44] Speaker 00:
OCD, 10%.

[00:25:46] Speaker 00:
Asthma, 10%.

[00:25:47] Speaker 00:
Sleep apnea, 50%.

[00:25:48] Speaker 00:
So that was really the driving force.

[00:25:50] Speaker 03:
You haven't answered the question yet.

[00:25:52] Speaker 03:
The question was, was 90 converted to 100?

[00:25:55] Speaker 00:
No, 90 was definitely, yeah, definitely.

[00:25:57] Speaker 00:
So in March of 2010, I'm not sure this is in the record.

[00:26:00] Speaker 00:
Parts of it may be in the record.

[00:26:02] Speaker 00:
And there's certainly allusions to it in the briefs and the decisions and so forth.

[00:26:07] Speaker 00:
But on March 15, 2010, he received a rating taking him to 100 percent.

[00:26:13] Speaker 00:
This was on the original administrative record at 257, entitled, described as entitlement to individual employability.

[00:26:23] Speaker 00:
And there they described that he was being rated as 100 percent based on his then employability.

[00:26:31] Speaker 00:
There's really no question that what the military had to do was consider what they were being presented with then while he was on active duty.

[00:26:38] Speaker 00:
As things developed, unfortunately, later they tended to degrade, and that's when the VA takes over.

[00:26:44] Speaker 00:
There's no further questions, Your Honor.

[00:26:47] Speaker 00:
We respectfully request the decision of the Court of Federal Plaintiffs be affirmed.

[00:26:50] Speaker 03:
Thank you, Mr. Billingham.

[00:26:52] Speaker 03:
Mr. Perry has two minutes if you need it.

[00:26:58] Speaker 02:
Thank you, Your Honor.

[00:26:58] Speaker 02:
Just a few points.

[00:27:02] Speaker 02:
I'm just going to end this argument.

[00:27:08] Speaker 02:
One, we just want to clarify that his OCD rating that was eventually raised to 10% was also backdated with an effective date.

[00:27:13] Speaker 02:
So as happens in a lot of these cases with veterans, they make an initial determination.

[00:27:18] Speaker 02:
And then after that, they go through the appeals process.

[00:27:20] Speaker 02:
So I just want to clarify that there was some more severity than suggested.

[00:27:26] Speaker 02:
The issue with Force 16B's application or applicability to the Air Force, two points.

[00:27:37] Speaker 02:
And not to inject this, it's certainly not in the record, but just my practice is before these military boards, the majority is before the physical evaluation boards at the agency level, and I've direct knowledge that the agency has in the past, the Air Force specifically, has, it's very rare, but has directed, instead of sending it to the VA, has sent it to their chief headquarters

[00:28:00] Speaker 02:
DPAM, D-P-A-M-M, is the overarching physical disability evaluation agency, and the director has made decisions in the past under the unemployability regulation.

[00:28:14] Speaker 02:
The other issue that I would like to point out to the court is that currently, the VA does provide ratings for military cases, disability cases, under the integrated disability evaluation system, IDES.

[00:28:25] Speaker 02:
That's accomplished where

[00:28:27] Speaker 02:
Again, under the 2008 National Defense Authorization Act, Congress directed that the military secretaries and the VA secretary confer and see if they can work out a system where the VA provides ratings so that there isn't a disparity between military ratings and VA ratings applying the same schedule.

[00:28:47] Speaker 02:
What the IDES has been accomplished under is a memorandum of understanding.

[00:28:52] Speaker 02:
So it's not binding, but it certainly can be achieved that the VA can apply ratings under whatever theory to the Air Force.

[00:29:02] Speaker 02:
And my time has expired.

[00:29:04] Speaker 02:
I ask that the decision of the court be reversed and remanded.

[00:29:10] Speaker 03:
Thank you.

[00:29:10] Speaker 03:
Thank you very much.

[00:29:11] Speaker 03:
The case is submitted.