[00:00:14] Speaker 02:
And our final case this morning is number 181391, Nova versus Secretary of Veterans Affairs.

[00:00:41] Speaker 03:
Congratulations, Mr. Carpenter.

[00:00:42] Speaker 03:
You have a trifecta.

[00:00:44] Speaker 03:
This is his third time appearing in front of me this week.

[00:00:57] Speaker 03:
And there are two days left in the court.

[00:01:17] Speaker 02:
Okay, Mr. Carpenter.

[00:01:20] Speaker 04:
Excuse me, may it please the court?

[00:01:21] Speaker 04:
Kenneth Carpenter, appearing on behalf of the National Organization of Veterans Advocates.

[00:01:26] Speaker 03:
NOVA challenges the Secretary... Mr. Carpenter, is there any authority that prevents the VA from amending a rule following this Court's ruling on a prior rule?

[00:01:34] Speaker 04:
No, well, with the limitation of there is no statute or regulation that prevents that, and there certainly is no case law that prevents it.

[00:01:43] Speaker 04:
The case law says, however, that when they do that,

[00:01:46] Speaker 04:
They must do so within certain parameters.

[00:01:49] Speaker 04:
Reasoned rulemaking.

[00:01:50] Speaker 04:
Reasoned rulemaking, that's correct.

[00:01:52] Speaker 02:
You're not arguing here that the amended rule is contrary to the statute, right?

[00:01:56] Speaker 04:
There is no statute, Your Honor.

[00:01:58] Speaker 04:
There isn't?

[00:01:59] Speaker 04:
No.

[00:02:00] Speaker 04:
This is a regulation that was promulgated by the Secretary under his 511A rulemaking authority.

[00:02:06] Speaker 04:
1155?

[00:02:07] Speaker 04:
And not under any specific statute because this is a

[00:02:13] Speaker 04:
regulation that pertains to ratings outside of the rating schedule contemplated by 1155.

[00:02:21] Speaker 02:
Let me tell you what my problem is.

[00:02:24] Speaker 02:
It seems to me that basically what you're arguing is that the regulation is arbitrary and capricious in not allowing ratings to be considered together for purposes of extra schedule or ratings.

[00:02:41] Speaker 02:
But I don't see any evidence of examples of how this would be arbitrary and capricious, or can I understand from your arguments or from the record how that would be the case?

[00:02:59] Speaker 02:
You know, give us an example of where the failure to combine would be arbitrary and capricious.

[00:03:08] Speaker 04:
Well, Your Honor, that's the problem with the

[00:03:11] Speaker 04:
VA's rulemaking in this case is that for 80 years, the VA maintained what they refer to as their long-standing interpretation of this regulation.

[00:03:20] Speaker 02:
No, but that's not an answer.

[00:03:22] Speaker 02:
I'm talking about nobody has come up with hypotheticals where, for example, the failure to consider two ratings together is arbitrary and capricious because there should be a higher extra schedule or rating

[00:03:40] Speaker 02:
than would be the case if you consider them individually.

[00:03:45] Speaker 00:
It's like a particular veteran, a hypothetical veteran with a particular circumstance, what the judge is asking for.

[00:03:52] Speaker 04:
Yes, yes.

[00:03:53] Speaker 04:
I believe I understand.

[00:03:55] Speaker 04:
And what I was trying to express was is that because this rule has been ostensibly ignored for 80 years, and then when this court interpreted the rule opposite their interpretation,

[00:04:08] Speaker 04:
There is nothing to compare it to.

[00:04:10] Speaker 04:
I can give you hypothetical examples.

[00:04:13] Speaker 02:
What's a hypothetical?

[00:04:15] Speaker 02:
I mean, there's no record of situations where this would be arbitrary and capricious, made before the agency.

[00:04:24] Speaker 02:
It's just that the whole issue is presented in the abstract.

[00:04:31] Speaker 04:
And the reason for that abstraction is the secretary has never applied the rule as he wrote it.

[00:04:37] Speaker 02:
That does not prevent people from saying that the way the rule has been applied is arbitrary and capricious because here's example 1, 2, 3, 4, 5 where it is arbitrary.

[00:04:49] Speaker 04:
Well, I guess I presumed, Your Honor, that the court would want to see actual examples of how this rule was applied

[00:04:58] Speaker 04:
in an arbitrary manner.

[00:05:00] Speaker 04:
If the rule has never been applied and it has never been applied correctly, how can we do anything but speculate as to what might happen?

[00:05:09] Speaker 02:
Well, that's the problem.

[00:05:10] Speaker 02:
You're not even speculating as to what might happen.

[00:05:12] Speaker 02:
Why shouldn't we resolve this case by just saying, okay, on its face, the rule's not arbitrary and capricious, but if in a future case someone can show that the failure to combine the ratings and consider them together

[00:05:28] Speaker 02:
is arbitrary and capricious, then we'll consider the issue in the context of that individual case.

[00:05:33] Speaker 02:
Why wouldn't that be the appropriate way to resolve this case?

[00:05:38] Speaker 04:
Because that will require veterans to be subjected to this rule that is a rule that has never been applied the way in which it was originally written.

[00:05:49] Speaker 02:
I don't think that's an answer, but it will enable a veteran who says, I'm being treated arbitrarily because you won't combine the ratings to say,

[00:05:56] Speaker 02:
in this individual case, the federal combined the ratings as arbitrary and capricious because I would have gotten a higher rating if they were combined.

[00:06:03] Speaker 02:
So why shouldn't we wait for a case in which that actually happens in order to consider that issue?

[00:06:10] Speaker 04:
I don't see how this court could ever consider that issue on an as-applied basis because it's beyond this court's jurisdiction.

[00:06:17] Speaker 04:
It would be an application of law to fact.

[00:06:19] Speaker 02:
It would be a discretionary judgment on the part of... It's not an application of law to fact to determine whether

[00:06:25] Speaker 02:
application is arbitrary and capricious.

[00:06:29] Speaker 02:
We have a statute which allows us to consider individual legal issues.

[00:06:33] Speaker 02:
That's an individual legal issue.

[00:06:37] Speaker 02:
I'm sure you'll be before us on that we do have jurisdiction.

[00:06:41] Speaker 03:
I am making metal notes as you speak, Your Honor.

[00:06:44] Speaker 03:
In the proposed rule, the VA says that one of its reasons in amending is to make it logical and consistent with the VA's other regulatory

[00:06:56] Speaker 03:
schemes for evaluating disabilities.

[00:06:58] Speaker 03:
Isn't that a valid basis for reasonable making?

[00:07:02] Speaker 04:
No, it's not, Your Honor.

[00:07:04] Speaker 03:
This regulation was created more than 80 years ago to deal with the fact... Making something logical and consistent with other regulatory schemes is not

[00:07:13] Speaker 03:
a reasonable basis?

[00:07:15] Speaker 04:
No, Your Honor, because this regulation pertains to when the VA's regulations, specifically its rating criteria, as mandated by 1155, doesn't work.

[00:07:29] Speaker 04:
It doesn't adequately compensate or adequately rate the service-connected disability.

[00:07:35] Speaker 04:
So this is outside of those regulations.

[00:07:39] Speaker 04:
That's why this is extra scheduler consideration.

[00:07:42] Speaker 04:
as extra scheduler consideration, the VA is required to look beyond its own ratings code.

[00:07:49] Speaker 04:
Doesn't the whole thing have to work together?

[00:07:53] Speaker 03:
Yes, you are.

[00:07:53] Speaker 03:
The entire scheme doesn't have to work together.

[00:07:56] Speaker 03:
And if they're saying, we're trying to make the whole scheme work together, is that not a basis for rational rulemaking?

[00:08:04] Speaker 04:
If that were the way in which this regulation

[00:08:08] Speaker 04:
is intended to operate, you would be correct.

[00:08:12] Speaker 04:
I believe you are incorrect because this regulation acts outside of the VA's regulatory scheme.

[00:08:21] Speaker 04:
All I'm doing is reading from what they say.

[00:08:25] Speaker 04:
And I'm saying in response to what they said is that they cannot use their own regulatory criteria, their own rating schedule, because that rating schedule

[00:08:38] Speaker 04:
has been found as the predicate to trigger the use of this regulation to be inadequate.

[00:08:45] Speaker 04:
If it is inadequate, you cannot use the inadequate rating criteria to determine what the appropriate rating would be.

[00:08:54] Speaker 00:
Are they saying though, do I understand correctly that what they're saying is that they need to look at the regular rating criteria in order to determine if they aren't adequate.

[00:09:06] Speaker 00:
And their system is only set up to do that for individual ratings as opposed to combined ratings.

[00:09:13] Speaker 04:
And that undermines the whole creation of this regulation.

[00:09:17] Speaker 04:
As pointed out earlier, this regulation has no statutory predicate.

[00:09:23] Speaker 04:
in which Congress said, create a system to deal with when your rating schedule, as we mandated in 1155, doesn't fit.

[00:09:33] Speaker 00:
Why doesn't the fact that there's not a statute here give the agency more power to change its regulation as opposed to less?

[00:09:43] Speaker 04:
Well, I would say in the first instance, because of the preceding 80 years in which the VA should have been affording this additional consideration so that we would have something to actually compare it to, to show how the VA would have operated had they in fact correctly interpreted the plain and unambiguous meaning of the obligation to consider all of the veteran's disabilities.

[00:10:08] Speaker 02:
The VA has arbitrarily... So they have to do this in order to give you a record to argue that it's arbitrary and capricious?

[00:10:14] Speaker 02:
That's extremely odd.

[00:10:15] Speaker 04:
No, Your Honor.

[00:10:17] Speaker 04:
I'm responding to your construct that that is necessary.

[00:10:21] Speaker 02:
I'm saying that they cannot... We still don't have a single example of a situation in which their approach would be arbitrary and capricious.

[00:10:29] Speaker 02:
Not a single one.

[00:10:30] Speaker 02:
There's not a single one in the record.

[00:10:32] Speaker 02:
You haven't given us a single one this morning.

[00:10:34] Speaker 02:
How are we supposed to say it's arbitrary and capricious?

[00:10:36] Speaker 00:
What about the Johnson case?

[00:10:37] Speaker 00:
Wasn't the Johnson case a situation why?

[00:10:40] Speaker 00:
Can you tell us about the facts there, and would that be an example that would satisfy Judge Dyke's question?

[00:10:47] Speaker 04:
Well, in the Johnson case, the veteran was refused consideration of extra schedule or consideration for more than one disability.

[00:10:57] Speaker 04:
And the question that was presented in Johnson was,

[00:11:00] Speaker 04:
Did the VA violate its own regulation when it said, no, we will not consider anything but one service-connected disability?

[00:11:10] Speaker 02:
Yes, but if I recall correctly, and maybe I'm wrong about this, I don't see anything in the Johnson case that explained why the VA's approach was arbitrary.

[00:11:20] Speaker 02:
The argument was that it was contrary to the regulation, but I don't see that it was explained why it was arbitrary or why the VA's approach undercompensated

[00:11:30] Speaker 02:
under the extra-schedular rating.

[00:11:33] Speaker 04:
Well, respectfully, Your Honor, the government's defense was, as it is in their rulemaking, is that that's not the way they interpreted the plain meaning of what they wrote.

[00:11:43] Speaker 02:
I understand, but you want us to strike down a regulation as arbitrary and capricious as that.

[00:11:48] Speaker 02:
Any explanation as to how it's arbitrary?

[00:11:52] Speaker 04:
Your Honor, the way I interpret the Supreme Court's ruling is that the burden is on the Secretary

[00:11:58] Speaker 04:
to present to you a reasoned analysis for why the rescinding of the consideration of all of the veteran's disability is the appropriate way to proceed going forward.

[00:12:11] Speaker 04:
And with the VA's track record in which they are supposed to be adjudicating claims in the best interest of the veteran and giving the veteran every benefit of the doubt, they have refused to do that for 80 years.

[00:12:24] Speaker 04:
Then they get overruled by this court that that practice is incorrect

[00:12:28] Speaker 04:
that interpretation is incorrect, it is arbitrary and capricious to simply abandon it because they say it would be more efficient in order for them to compare to their own rating schedule.

[00:12:40] Speaker 04:
When this regulation was created by the Secretary on his authority to create a regulation that is consistent with the laws that he administers, and the laws that he administers are the rating schedule that the predicate to get consideration

[00:12:58] Speaker 04:
You cannot get consideration under this regulation unless there is a finding that the regulation is inadequate to rate the veteran service-connected disabilities.

[00:13:08] Speaker 04:
And without considering the totality of the veteran service-connected disability, you get a skewed view by simply looking at that in isolation.

[00:13:19] Speaker 04:
And that's what this court found in Johnson was wrong with their interpretation that you could interpret the phrase

[00:13:27] Speaker 04:
disability or disabilities as being other than its plain and unambiguous meaning.

[00:13:35] Speaker 02:
Okay, you want to say the rest of your time?

[00:13:36] Speaker 04:
I will, thank you.

[00:13:38] Speaker 02:
Mr. Hawkey?

[00:13:40] Speaker 01:
May it please the court?

[00:13:44] Speaker 01:
I mean, the cases that NOVA is not satisfied with, how the secretary has always interpreted the extra scheduler rating at 3.321.

[00:13:57] Speaker 01:
Johnson

[00:13:58] Speaker 01:
alerted the VA to the fact that the plain language as using S's in the term disability picture, in other words, could be read to apply to a combination of disabilities, which had never been VA intended, never been used that way.

[00:14:12] Speaker 01:
So VA reacted as agencies are allowed to react in the absence of a court interpreting a statute in a manner that allows no wiggle room, which this did not, this court did not address in Johnson.

[00:14:26] Speaker 01:
1155 or that 3.321 could only be read in one way with respect to 1155.

[00:14:33] Speaker 01:
And so the agency reacted by addressing the concerns of the court raised in its plain language review.

[00:14:39] Speaker 02:
Okay, but that all makes a lot of sense that you have a system and making the combination determinations is inconsistent with the system, it would be difficult for the VA to do it, so on and so forth.

[00:14:54] Speaker 02:
All makes perfect sense.

[00:14:56] Speaker 02:
If the regulation produced arbitrary results, then it might still be invalid under the Administrative Procedure Act.

[00:15:05] Speaker 02:
So then the problem here is that there isn't any evidence in the rulemaking that it was produced arbitrary results.

[00:15:15] Speaker 02:
But suppose hypothetically that in some future case, a veteran is able to show that the failure to consider the combination does produce an arbitrary result.

[00:15:25] Speaker 01:
Well, you have to measure that against what Congress has told the Secretary to do.

[00:15:32] Speaker 01:
In 1155, what Congress has told the Secretary to do is to come up with a common rating schedule and a common way to combine the effect of multiple disabilities.

[00:15:43] Speaker 01:
And that is the rating schedule that appears at 38 CFR 4.71A through 4.150 and the

[00:15:51] Speaker 01:
table of combined ratings that appears at 38 CFR 4.25.

[00:15:56] Speaker 01:
So under the direction of 1155, the Secretary has satisfied the requirements that Congress imposed.

[00:16:05] Speaker 01:
Let me ask you this.

[00:16:07] Speaker 03:
At 12, you say individual disabilities are evaluated under criterion VA's rating schedules describing the effect of specific diseases and injuries.

[00:16:18] Speaker 03:
the ratings assigned for individual conditions are then combined into a single combined evaluation under a uniform formula set forth in the table.

[00:16:28] Speaker 03:
Are extra scheduler evaluations factored into that singular, single combined evaluation?

[00:16:35] Speaker 01:
Yes, and I'll explain.

[00:16:38] Speaker 01:
In 3.321, where the secretary has always interpreted that,

[00:16:42] Speaker 01:
And it's important to remember what is the purpose behind 3.321.

[00:16:45] Speaker 01:
I mean, this wasn't focused on Johnson because plain language decision.

[00:16:49] Speaker 01:
But the purpose wasn't to address the combined language phrase that's contained in 1155.

[00:16:54] Speaker 01:
In fact, it wasn't really designed to address any direction in 1155.

[00:17:00] Speaker 01:
What it was designed to do is to address the reality that when you develop a common rating schedule that everyone uses, there may be situations

[00:17:11] Speaker 01:
in which a particular claimant's disability is not reflected in the way the rating, the diagnostic code levels of rating were created for that particular disability.

[00:17:22] Speaker 01:
And so the VA decided, and this was sort of a part of the, you know, the generous, beneficent, usually that we're responding to it here, we're trying to tailor the rating schedule in a way that would sort of address these odd cases, these exceptional cases.

[00:17:39] Speaker 01:
And the best way to do that is by using the standards that are contained in the rating schedule and comparing the effect of a disability on the individual veteran in terms of the examples in the regulation are frequent hospitalization, unusual work effects.

[00:17:57] Speaker 01:
That is done at the disability level.

[00:18:00] Speaker 01:
Then there's a factor given to it.

[00:18:02] Speaker 01:
And if there's more than one disability, it's rolled into

[00:18:08] Speaker 01:
the combined factor table, if you will.

[00:18:12] Speaker 01:
The other extra scheduler provision is 4.16 TDIU provision.

[00:18:17] Speaker 01:
And that's sort of, it's similar in the sense that VA designed that to deal with the problem where either a single disability isn't really reflected in the schedule.

[00:18:28] Speaker 01:
Or everything adds up.

[00:18:29] Speaker 01:
But the point there is, rather than allowing for sort of willy-nilly, oh, I think this guy

[00:18:35] Speaker 01:
deserves more, which is kind of the sort of the gist behind what Nova's argument is.

[00:18:40] Speaker 01:
And that's why the secretary's uncomfortable doing that kind of a thing.

[00:18:44] Speaker 01:
They look at it from something that's a little bit more objectively measurable, which is employability.

[00:18:49] Speaker 01:
And so if you are employable, or if you're not employable, as the case in 4.16 would be, then facts can establish that.

[00:18:56] Speaker 01:
The evaluators in the field can look at it and determine this person's not employable.

[00:19:00] Speaker 02:
But the problem is that some instances in which that's not going to take account

[00:19:05] Speaker 02:
of the reality of the situation.

[00:19:07] Speaker 02:
I understand that there's a separate scheduler rating concerning the loss of one leg and both legs, but let's assume there weren't.

[00:19:18] Speaker 02:
And you had a veteran who had lost both legs, but the only scheduler rating was on an individual leg basis.

[00:19:29] Speaker 02:
I mean, surely it would conceivably be arbitrary

[00:19:33] Speaker 02:
for the VA to refuse to consider those two disabilities together and the impact that they have together on employability.

[00:19:43] Speaker 02:
And suppose, I know that can't happen under the actual rating schedule, but I'm giving it to you as a hypothetical.

[00:19:50] Speaker 02:
Suppose we had a situation like that in the future in which a veteran can make the showing that the only way that you can have a realistic determination of employability is by considering the two

[00:20:03] Speaker 02:
disabilities together.

[00:20:04] Speaker 02:
Couldn't it be arbitrary on some circumstances for the VA to refuse to do that?

[00:20:10] Speaker 01:
I would think without a change to the language of 1155, the answer is no.

[00:20:15] Speaker 01:
What the VA is doing is implementing congressional direction and establishing the schedule of ratings.

[00:20:22] Speaker 01:
And when the Congress says, the Congress recognized in imposing the direction of 1155 on the agency that there are, as in almost all regulatory or statutory schemes,

[00:20:32] Speaker 01:
administrative burdens associated with attempting to do whatever the mission of the agency is.

[00:20:37] Speaker 01:
Here the mission of the agency is to give benefits and so there's going to be a line like in all these situations where you have to say at this point trying to address particular idiosyncrasies of every different claimant and I think the numbers are what, two million claims are submitted annually these days, that it becomes too much of a burden on the system

[00:20:59] Speaker 02:
No, but under the hypothetical that I'm giving you, that would not be required.

[00:21:04] Speaker 02:
It would be up to the veteran to say, in this particular case, it's arbitrary because the combination should lead to a higher rating.

[00:21:12] Speaker 01:
So I'm going to simply circle back, but I'm going to answer this in a different way, too.

[00:21:19] Speaker 01:
To reiterate, we would still maintain that in the absence of a direction from Congress,

[00:21:25] Speaker 01:
to approach the issue of veterans' benefits on an individual basis, but rather to come up with a system which is administratable.

[00:21:34] Speaker 03:
The statutory authority could itself be arbitrary and capricious.

[00:21:39] Speaker 01:
I mean, we're getting into questions of, you know, this is what the Johnson case was about.

[00:21:44] Speaker 01:
Sure, if there was a way to read the regulations so that you could provide more benefits, you know, notwithstanding Sears and other, you know, that would be desirable.

[00:21:54] Speaker 01:
but there are limits as to how you can do that.

[00:21:57] Speaker 01:
And that's what's reflected in this rulemaking and how the VA has always construed it as the VA thought that the most practical way to address the potential weaknesses in the schedule that applies to all is to address it through the disability.

[00:22:14] Speaker 01:
Now, circling back to your hypothetical

[00:22:17] Speaker 01:
There are also requirements in part four of 38 CFR imposed upon the medical examiners and the raters to really hone in on what's going on here.

[00:22:28] Speaker 01:
Figure out where you can best identify within the rating schedule what diagnostic code best measures up with what the veteran is experiencing.

[00:22:38] Speaker 01:
So you could actually see a situation in which someone comes in and says, and you're not going to have a claim generally,

[00:22:45] Speaker 01:
I have a diagnostic code 4.63 and diagnostic code 78.

[00:22:49] Speaker 01:
No, you're going to have a claim that says, I have something wrong with me, and as a result, I am missing work, or I'm going to the hospital frequently.

[00:22:57] Speaker 01:
And that impetus will be on the medical official examiner and the rating official to try to figure out whether that symptomatology or that experience can be fit within a particular disability, and if so, whether that rating for that disability addresses it.

[00:23:13] Speaker 01:
And if it cannot,

[00:23:15] Speaker 01:
3.321 extra schedule or relief may be afforded.

[00:23:20] Speaker 01:
So the concern you have, Your Honor, generally may not be something that pops up because the system may be used.

[00:23:27] Speaker 02:
It may not pop up very often, but it may pop up sometimes.

[00:23:31] Speaker 01:
But again, you have to have a system that works for everybody.

[00:23:33] Speaker 01:
And this Court said that in numerous cases, Sears being the one example where you have to interpret the whole system.

[00:23:41] Speaker 02:
Yeah, but the problem is,

[00:23:42] Speaker 02:
under the hypothetical system is not working for people.

[00:23:46] Speaker 02:
The combination isn't adequately reflect the degree of disability.

[00:23:50] Speaker 01:
I'm not sure.

[00:23:51] Speaker 01:
I mean, we have a system that's been applied for 80 years in a particular manner.

[00:23:54] Speaker 01:
And we had what I concede is a very clever plain language argument raised by the council for Mr. Johnson.

[00:24:02] Speaker 01:
And then the agency reacts to it.

[00:24:06] Speaker 01:
It's not like this has been an ongoing problem.

[00:24:10] Speaker 00:
I see if I understand part of what your argument, something that I think I'm hearing from you is that because you're looking at symptoms with these individual conditions, like the symptom might be, for example, frequent hospitalization.

[00:24:26] Speaker 00:
Or like the reality that they're experiencing.

[00:24:28] Speaker 00:
Things like that.

[00:24:29] Speaker 00:
It doesn't necessarily matter which medical condition under which that symptom is identified.

[00:24:34] Speaker 01:
What I'm saying is that the instructions of part four are imposed upon both the medical examiner to take into account

[00:24:41] Speaker 01:
you know, the effect of the disability on the person's life and the raider who is really out to try to see if he can maximize the benefits available to the claimant.

[00:24:50] Speaker 01:
I mean, a lot of times we stand here and are subjected to suggestions that that's not the case, but that is the mission of the agency.

[00:24:56] Speaker 01:
So what I'm suggesting is that when confronted with a situation in which the claimant has demonstrated that he experiences frequent hospitalizations or

[00:25:08] Speaker 01:
misses work but not sufficient enough to meet standards of 4.16.

[00:25:12] Speaker 01:
The rating official and the medical examiner may very well resolve it through the government's interpretation of 3.321 by associating that frequent hospitalization with a particular disability instead of having to resort to an argument that it's really the combination of disabilities.

[00:25:28] Speaker 01:
In many cases, it may not be a combination of disabilities.

[00:25:32] Speaker 01:
If you look at something hard enough, you could probably identify the major cause

[00:25:37] Speaker 01:
of the frequent hospitalizations.

[00:25:38] Speaker 01:
That may very well be that that is sufficient under 3.21 or that particular rater's application of it to provide an extra schedule or benefit in that case.

[00:25:49] Speaker 01:
What we understand NOVA to be arguing here is notwithstanding that possibility, because the Johnson case read the plain language of 3.321 as it did, there should be some sort of new sort of step in the review process that takes place after

[00:26:04] Speaker 01:
Everything else is done vis-a-vis the individual disabilities and after 4.25 is applied to come up with the overall combined rating and there's some sense that at that point that is still insufficient and there should be another look-see at the question with the idea that, well, we didn't capture the frequent hospitalizations or we didn't capture the loss of work opportunity and so we should just give them credit for that even though we can't associate it with any particular disability.

[00:26:32] Speaker 00:
Are you familiar enough with the Johnson case to know what it was that Johnson was seeking there?

[00:26:37] Speaker 01:
I argued Johnson.

[00:26:41] Speaker 01:
But I have the benefit of hearing the question while I was sitting there, able to open the decision.

[00:26:47] Speaker 01:
And he had a 10% heart condition and a 10% knee condition, which I think he had another 10% rating related to the effect of a bilateral rating.

[00:26:59] Speaker 01:
So I think he had either three 10%

[00:27:02] Speaker 01:
ratings or two 10% ratings plus the bilateral 10%.

[00:27:07] Speaker 01:
Let's just say it's three 10% ratings.

[00:27:09] Speaker 01:
The issue in that case, I don't understand it.

[00:27:12] Speaker 01:
This court didn't get to the point where whether or not he would have been granted benefits under the two or various interpretations.

[00:27:19] Speaker 02:
And Johnson, tell me if I'm wrong about this.

[00:27:23] Speaker 02:
My understanding is Johnson never explained why the combination should give him a higher rating.

[00:27:29] Speaker 01:
The court approached Johnson from a very

[00:27:32] Speaker 01:
in our view proper, because it would have been delving into the application part if they had taken the next step and added a paragraph at the end.

[00:27:40] Speaker 02:
Sometimes Article 3 compels us to look at the facts.

[00:27:48] Speaker 02:
We're not here giving hypothetical opinions on things.

[00:27:53] Speaker 01:
I understand, Your Honor, and I'm sure the Court understands why I love 7292D and I will reference it every time.

[00:28:02] Speaker 01:
But in Johnson, they stopped after they determined the legal question, which was, did the plain language of the regulation allow for consideration of extra schedule relief under 3.3212 for the situation of combined disabilities?

[00:28:16] Speaker 01:
And certainly, we didn't argue in Johnson that it didn't.

[00:28:21] Speaker 01:
Our position in Johnson was it could be interpreted both ways.

[00:28:24] Speaker 01:
And we were looking for help on the deference front.

[00:28:27] Speaker 01:
But that didn't come.

[00:28:29] Speaker 01:
So here we are.

[00:28:30] Speaker 01:
We revised the regulation.

[00:28:32] Speaker 01:
consistent with the way we always interpreted it.

[00:28:34] Speaker 01:
We think it makes sense.

[00:28:36] Speaker 01:
It's consistent.

[00:28:37] Speaker 01:
To answer an earlier question, I think Judge Wallach, you had referenced a line from the rulemaking about consistent with the overall system.

[00:28:45] Speaker 01:
And an example, which is referenced in the footnote in our brief, is effective dates.

[00:28:50] Speaker 01:
Everything about effective date generally gears toward a disability.

[00:28:54] Speaker 01:
So you know that when you get the award for the disability, that's when you look to see the effective date.

[00:28:58] Speaker 01:
But when you're dealing with a combined rating that may be added later,

[00:29:01] Speaker 01:
And the combined rating is a result of multiple disabilities, which may have different effective dates when they are originally awarded.

[00:29:07] Speaker 03:
The only caveat I can add is I understand perfectly your argument of two million claims.

[00:29:18] Speaker 03:
We have to make this work for everybody.

[00:29:21] Speaker 03:
But of course, the Constitution applies to each individual.

[00:29:24] Speaker 03:
And so arbitrary and capricious could pop up at some point

[00:29:32] Speaker 03:
for an individual, and that's the way it is.

[00:29:34] Speaker 03:
I mean, that's my position.

[00:29:36] Speaker 01:
Yeah, I mean... And you know that, too.

[00:29:41] Speaker 01:
It's a case that we'll deal with when it comes up and determine whether a regulatory change is required or some other type of reaction is required, but this isn't that case.

[00:29:50] Speaker 04:
I'd like to use my rebuttal time to give you a hypothetical.

[00:29:59] Speaker 04:
It may be way too late, I understand.

[00:30:03] Speaker 04:
However, before I get into that, I'd like to respond to Judge Stoll's question about the outcome in Johnson.

[00:30:09] Speaker 04:
I'm not sure it's particularly relevant here, but I was Mr. Johnson's counsel.

[00:30:15] Speaker 04:
I took the case back below, and Mr. Johnson was able to establish service connection for other multiple disabilities.

[00:30:22] Speaker 04:
and was eventually awarded a total rating based upon unemployability.

[00:30:26] Speaker 04:
So the VA never got to the remanded issue of how to apply or not apply 3.321 in accordance with the plain language.

[00:30:34] Speaker 03:
Mr. Hockey said you argued that very cleverly.

[00:30:37] Speaker 04:
He did.

[00:30:38] Speaker 04:
And I received the benefit of that backhanded compliment.

[00:30:43] Speaker 03:
Well, I don't think it was backhanded.

[00:30:44] Speaker 03:
I think it was a compliment.

[00:30:47] Speaker 04:
Maybe it was just the way I perceived it.

[00:30:51] Speaker 04:
I'd like to give you a hypothetical of a veteran who is service-connected for post-traumatic stress disorder with a 70% rating.

[00:30:59] Speaker 04:
He doesn't meet the 100% schedule or criteria, but he also has, from his combat experience, tinnitus.

[00:31:06] Speaker 04:
The rating for tinnitus under the VA's rating schedule is 10%.

[00:31:10] Speaker 04:
There is no criteria.

[00:31:13] Speaker 04:
If you have it, you get 10%.

[00:31:15] Speaker 04:
If you don't have it, you get zero.

[00:31:18] Speaker 04:
But in my hypothetical, this veteran

[00:31:21] Speaker 04:
has other symptoms from his tinnitus.

[00:31:26] Speaker 04:
The ringing in the ears becomes a distraction at work.

[00:31:30] Speaker 04:
It becomes a frustration.

[00:31:32] Speaker 04:
It aggravates his symptoms of post-traumatic stress disorder.

[00:31:36] Speaker 04:
It creates a situation in which the constant ringing in the ears prevents him from answering the phone.

[00:31:42] Speaker 04:
It prevents him from making calls.

[00:31:44] Speaker 04:
It prevents him from being able to hear and interact with other people.

[00:31:48] Speaker 04:
Or it panics him.

[00:31:50] Speaker 04:
I was getting there too.

[00:31:52] Speaker 04:
It can go through the whole series of triggers for the symptoms of that other service-connected disability.

[00:31:59] Speaker 04:
And what NOVA believes is arbitrary and capricious about the VA having a regulation that clearly is extraordinarily beneficial to veterans.

[00:32:11] Speaker 04:
It is predicated upon doing justice when the rating schedule is inadequate.

[00:32:17] Speaker 04:
In order to accord justice, you need to look at the totality.

[00:32:22] Speaker 04:
Now, the VA, in my judgment, hides behind the notion that they want to integrate this with the very thing that is the trigger to consideration, which is its rating schedule doesn't work.

[00:32:36] Speaker 04:
And Tinnitus is the perfect example.

[00:32:38] Speaker 04:
10% is not adequate in my hypothetical veteran situation to compensate him adequately.

[00:32:46] Speaker 04:
And that then requires the consideration of the totality of his service-connected disabilities.

[00:32:53] Speaker 04:
And I apologize profusely to both Nova and to this court for having not provided hypotheticals.

[00:33:00] Speaker 02:
Thank you, Mr. Herman.

[00:33:01] Speaker 02:
I thank both counsel and the cases submitted.

[00:33:04] Speaker 02:
That concludes our session for this morning.