[00:00:00] Speaker 02:
Mr. Niles, please proceed.

[00:00:06] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:00:10] Speaker 04:
This appeal raises the question of how the Department of Veterans Affairs must rate a star's multiple functional effects.

[00:00:18] Speaker 04:
And the answer resides in 38 CFR Section 425, which requires VA to rate separately each disability that a veteran has.

[00:00:29] Speaker 04:
VA's schedule for rating disabilities provides further guidance on how VA must evaluate SCARS functional effects, with the relevant diagnostic codes being 7804 and 7805, 7804 requiring VA to rate as 10% disabling a SCAR that is painful, and 7805 speaking to a SCARS, quote unquote, other effects.

[00:00:57] Speaker 04:
And Diagnostic Code 7805 operates a bit differently than most of the diagnostic codes in the rating schedule.

[00:01:05] Speaker 04:
Instead of listing out its own specific rating criteria, what it does instead is to operate as a gateway.

[00:01:12] Speaker 04:
And it requires VA to rate a star's other effects by analogy to whatever particular diagnostic code speaks in turn to that kind of effect.

[00:01:25] Speaker 03:
Mr. Niles, this is Judge Pro.

[00:01:30] Speaker 03:
Sorry to interrupt, but time is limited.

[00:01:33] Speaker 03:
So you haven't mentioned 38 CFR 4.14.

[00:01:38] Speaker 03:
So I think it's the government's view and it was the court below that you're precluded from this stacking.

[00:01:45] Speaker 03:
So tell me precisely why you think this is an exception to that or different than what was intended or contemplated by 4.14.

[00:01:58] Speaker 04:
Yes, Your Honor.

[00:01:59] Speaker 04:
The government's view in this case respectfully turns everything on its head, where the correct analysis begins with the particular diagnostic codes.

[00:02:09] Speaker 04:
And here you have 7804, which says, OK, a compensable rating

[00:02:14] Speaker 04:
for a painful scar.

[00:02:16] Speaker 04:
You have 7805, the plain text of which says, other, other effects, other meaning different.

[00:02:22] Speaker 04:
And so the correct view then is that with that plain text of the regulation, the way the secretary has drafted this up, there is no set of circumstances.

[00:02:33] Speaker 04:
in which a disability that is rated under 7805 can be the same.

[00:02:40] Speaker 03:
But I didn't understand 7805 to be implicated here.

[00:02:46] Speaker 03:
There's no other effect of the scar that was evaluated under the diagnostic code, was it?

[00:02:56] Speaker 03:
I'm obviously misunderstanding something.

[00:03:00] Speaker 04:
Oh, I'm sorry, Your Honor.

[00:03:01] Speaker 04:
It is maybe a shortcoming of the Board's decision itself, the Board of Veterans Appeals decision.

[00:03:06] Speaker 04:
I would direct Your Honor to, I'll start broadly with Appendix 27 to 32, which is the section of the Board's decision where it is addressing this entitlement to rating for SCARS functional defects.

[00:03:22] Speaker 04:
And Appendix at 28, the board that is

[00:03:29] Speaker 04:
acknowledges 7804 and then says that if there is other limitation of function, the star should be rated on that limitation pursuant to 7805.

[00:03:42] Speaker 02:
The board then goes through the evidence and... I'm sorry, I definitely want you to answer Judge Pro's question, but what I'm confused about is I thought that the board didn't rate this under 7805, but rather rated it under

[00:03:58] Speaker 02:
8 something, 8726.

[00:04:00] Speaker 04:
So Your Honor, it's important to keep in mind that 7805 acts as a gateway.

[00:04:07] Speaker 04:
And so in Appendix 28, the board is doing what it should.

[00:04:09] Speaker 04:
And it's saying, here are the diagnostic codes that are potentially applicable in 7804.

[00:04:15] Speaker 04:
And here's 7805.

[00:04:16] Speaker 04:
And 7805 requires the board then to break by analogy this other impairment.

[00:04:23] Speaker 04:
And so then at Appendix 31, this is what the board does.

[00:04:28] Speaker 04:
And at the second to last paragraph on the page, which I have starting as the board finds, it addresses here 7801 and 7804.

[00:04:38] Speaker 04:
The second to last line of this paragraph says, it is a painful scar.

[00:04:42] Speaker 04:
However, the scar is already being graded under code 7804.

[00:04:47] Speaker 04:
And then the board, again, does what it's supposed to do mostly.

[00:04:50] Speaker 04:
where it turns, and it does not here mention 7805, but that has to be what the board is doing.

[00:04:55] Speaker 04:
That is what the regulation requires.

[00:04:58] Speaker 02:
Why?

[00:04:58] Speaker 02:
Why does it have to be 7805?

[00:05:01] Speaker 02:
Why can't the board change its diagnosis from 7804, the diagnostic code, to 8726?

[00:05:07] Speaker 04:
If the board had done that, it would have to have said, essentially, the 15 years preceding that board decision, BA had been wrong all along.

[00:05:18] Speaker 04:
in rating this disability as a scar at all.

[00:05:22] Speaker 04:
It would have had to have said that this is nerve involvement and only nerve involvement.

[00:05:26] Speaker 04:
Instead, the paragraph I just read from said this is a pain in the scar.

[00:05:30] Speaker 04:
Everything here ties to the scar, and it's the diagnostic codes that InstructPA had to rate the scars that apply, 78 or four.

[00:05:38] Speaker 04:
And then for this other effect, this nerve involvement, because this is a scar with nerve involvement, 78 or five,

[00:05:46] Speaker 04:
And then the board opening up and through that gateway, rating five analogy to femoral neuralgia, the rating code for that being 8726.

[00:05:55] Speaker 04:
So what is it you're asking?

[00:05:57] Speaker 03:
This is Judge Proust again.

[00:05:59] Speaker 03:
I'm confused about what you want.

[00:06:01] Speaker 03:
I mean, are you seeking reimbursement under 7805 and 8726?

[00:06:11] Speaker 03:
Are those the two categories you're trying to get?

[00:06:14] Speaker 04:
Your Honor, I think that the best way to, if I were to write this up, would be Section 425 requires rating separately each disability.

[00:06:24] Speaker 04:
The board recognized this continued 7804 disability, the painful scar itself.

[00:06:30] Speaker 04:
The board also recognized this distinct effect of the scar of neuroinvolvement, which is to be rated under, it was rated under 7805 by analogy to 8726.

[00:06:44] Speaker 04:
Where the board went wrong, what the board should have done is then return to 425 and combine the 20% rating under 7805 with the 10% rating under 7804 to get a combined overall star rating of 28%.

[00:07:00] Speaker 04:
And so that is the relief that Mr. Domingo is requesting.

[00:07:08] Speaker 05:
Say that again.

[00:07:09] Speaker 05:
I thought we were talking about 10 and 20, which don't, in my mind, add up to 28.

[00:07:15] Speaker 04:
I understand sir, it's VA math.

[00:07:17] Speaker 04:
So VA what he does instead of adding percentages together, he combines them in.

[00:07:22] Speaker 04:
To take a step back, what VA is looking at is how much does each additional disability in this multi-dose disability context?

[00:07:29] Speaker 02:
You say each additional disability, but my confusion is the VA said this could be rated under 7804, but that would only give him 10%.

[00:07:37] Speaker 02:
Or it could be rated under 8726, and we can give him 20%.

[00:07:41] Speaker 02:
So resolving all doubt in favor of the veteran, we're going to rate his pain and discomfort in the area of his scar under 8726.

[00:07:50] Speaker 02:
I don't understand.

[00:07:51] Speaker 02:
The VA here went about the process in a way that is laudable.

[00:07:56] Speaker 02:
They gave him the higher rating under all the circumstances.

[00:08:01] Speaker 02:
I don't see them ever talk about 7805.

[00:08:04] Speaker 02:
So I don't know where you're getting that from.

[00:08:06] Speaker 04:
If it's OK with this court, I will answer this question and then return to Judge Tarantos.

[00:08:12] Speaker 04:
In answer to this question, diagnostic code 7804 is for

[00:08:19] Speaker 04:
a painful scar itself.

[00:08:21] Speaker 04:
It is limited to a painful scar itself.

[00:08:23] Speaker 04:
Anything that goes beyond a painful scar itself is a separate functional impairment that VA must, under 425, rate separately and then combine for this higher overall rating.

[00:08:36] Speaker 04:
And you have the board at Appendix 31 saying, you have this painful scar itself.

[00:08:42] Speaker 04:
You have all along.

[00:08:43] Speaker 04:
We're not disturbing that.

[00:08:45] Speaker 04:
Additionally, you have this nerve involvement.

[00:08:49] Speaker 04:
And that, additionally, this scar with NERC involvement means that there are two separate rateable disabilities here.

[00:08:57] Speaker 04:
And so the board's duty under 7805 and about 25 was then to assign that 20% rating by analogy to 8726 and combine them.

[00:09:07] Speaker 03:
Can I just ask you, although you, why don't you finish your answer, Judge Taranto, and then I'll ask you mine.

[00:09:13] Speaker 04:
Do you feel like you owe him an answer?

[00:09:15] Speaker 04:
So returning to this question, the combination works as follows.

[00:09:17] Speaker 04:
VA is looking at how much

[00:09:19] Speaker 04:
each disability impairs efficiency.

[00:09:23] Speaker 04:
And so you start with a higher rated disability here, 20%.

[00:09:26] Speaker 04:
That leaves the veteran 80% efficient.

[00:09:29] Speaker 04:
And so what the VA does next is to take that second rating, 10%, and apply it to the 80%.

[00:09:36] Speaker 04:
And so 10% of 80% being 8%, and you get the 28%.

[00:09:39] Speaker 03:
Thanks.

[00:09:41] Speaker 03:
OK.

[00:09:41] Speaker 03:
So my question is, you're treating them as separate

[00:09:48] Speaker 03:
kind of things.

[00:09:49] Speaker 03:
There's pain in the scar and then the scar's other effects.

[00:09:53] Speaker 03:
And it seems the problem for you is each of the board's ratings was for the same disabling effect or condition.

[00:10:03] Speaker 03:
Each rating was assigned on the basis of the same scar pain and discomfort.

[00:10:09] Speaker 03:
Do we have jurisdiction to change up and second guess and re-evaluate that evaluation?

[00:10:20] Speaker 04:
Your Honor, I appreciate the opportunity to respond to that concern.

[00:10:24] Speaker 04:
I believe what Your Honor is referring to is page Appendix 32.

[00:10:29] Speaker 04:
The board does state that this is same-star pain and discomfort.

[00:10:33] Speaker 04:
But again, Mr. Comico asked this court to review that passage in the light of the broader context here.

[00:10:39] Speaker 04:
where the board has already said, yes, there is this painful scar and disability, or effect number one, we'll call it.

[00:10:47] Speaker 04:
And also there's this nerve involvement that it discusses at the bottom paragraph of page appendix 31.

[00:10:53] Speaker 04:
So this second functional effect of the scar, and then given these two distinct effects, what do I, as the Veterans Law Judge, do with that?

[00:11:05] Speaker 04:
What the board's analysis at appendix 32 is predicated on is this misreading of 7804 and 7805 as permitting overlap, when in fact they are mutually exclusive.

[00:11:17] Speaker 04:
The way these are written, you always must have the one-star functional effect on the one hand, and entirely on the second hand, the other.

[00:11:26] Speaker 04:
And so what the board

[00:11:27] Speaker 03:
So the legal question you're raising before us is to construe 7804 and 7805?

[00:11:36] Speaker 04:
As a mutually exclusive, Your Honor, and as a consequence of that, barring application of 38 CFR section 414, which speaks to the pyramiding of

[00:11:55] Speaker 04:
It speaks to barring multiple evaluations of the same disability.

[00:12:00] Speaker 04:
So this is a case where 425 applies.

[00:12:04] Speaker 04:
Because it's this diagnostic code 7804 and 7805, saying these are mutually exclusive, they're different.

[00:12:09] Speaker 04:
And so they should be combined.

[00:12:11] Speaker 04:
In fact, they must be combined.

[00:12:13] Speaker 02:
Again, let me go back.

[00:12:14] Speaker 02:
Your entire case is predicated on what you believe is a board inaccurate construction

[00:12:21] Speaker 02:
of what happens when they have both a rating under 7804 and 7805.

[00:12:26] Speaker 02:
If I don't agree with you, there's a rating under 7805 at all.

[00:12:30] Speaker 02:
Does your whole case just go away?

[00:12:41] Speaker 04:
Yes, Your Honor, I think it does.

[00:12:43] Speaker 04:
But I would urge Your Honor that reading the board decision

[00:12:48] Speaker 04:
as a whole, where it starts with Appendix 28 going through 7801 through 7805.

[00:12:54] Speaker 04:
This entire discussion here is of a star in how to rate a star.

[00:12:59] Speaker 04:
That the board was following the law going under, going through this gateway of 7805 exactly as it had to do.

[00:13:06] Speaker 04:
It's unfortunate that at Appendix 31 the board did not mention 7805 again.

[00:13:11] Speaker 04:
But that is the analysis of the board.

[00:13:13] Speaker 03:
Well, that was my question to you.

[00:13:15] Speaker 03:
I can't find where the board mentioned 7805.

[00:13:19] Speaker 03:
Maybe I'm just missing something.

[00:13:21] Speaker 03:
Any other place but the one we spoke about earlier in Appendix 28.

[00:13:25] Speaker 03:
Am I missing some discussion of 7805?

[00:13:28] Speaker 03:
Well, no, Your Honor.

[00:13:31] Speaker 04:
But that is a key passage.

[00:13:32] Speaker 04:
This is the passage of the board's decision where it goes through and says, these are the potentially applicable diagnostic codes

[00:13:40] Speaker 04:
This is what frames my analysis, and everything that proceeds is going to be within that framework.

[00:13:46] Speaker 04:
And so the board is addressing, again, the scar.

[00:13:49] Speaker 04:
The 7804 says this is a painful scar.

[00:13:52] Speaker 03:
But if your argument here is so predicated and intertwined with an evaluation of 7805, I'm not seeing that presentation to the board or the court below or an analysis of theirs that we have to review.

[00:14:10] Speaker 04:
Your honor, I would direct the court's attention to appendix at page 63, where Mr. D'Amico argued in his initial brief to the Veterans Court that the board failed to discuss the implication of DC's 7804 and 7805, which allows for separate ratings for painful scars under DC 7804 and any disabling effects not considered in a rating provided under diagnostic codes 7800 to 7804,

[00:14:39] Speaker 04:
In that last piece there, speaking then of 7805, there's also appendix of page 77 now into Mr. Camico's reply brief to the Veterans Court where he's reiterating that, as argued in his opening brief, scars and nerve injuries necessarily contemplate different disabilities and that he is entitled to two ratings for these two disabilities.

[00:15:02] Speaker 04:
I see that I am.

[00:15:04] Speaker 02:
Don't worry.

[00:15:05] Speaker 02:
We'll restore your rebuttal time.

[00:15:06] Speaker 02:
Don't worry.

[00:15:07] Speaker 02:
But my problem is, what you're arguing now, he's entitled to two ratings and he didn't get them, is a factual question that we have no authority to review.

[00:15:18] Speaker 02:
And you directed us to page 63.

[00:15:21] Speaker 02:
Look at page 62.

[00:15:22] Speaker 02:
You state, in your brief, the board changed the rating code from 7804 to 8726.

[00:15:31] Speaker 02:
Your statement of the facts is that there was a single rating code.

[00:15:36] Speaker 02:
They changed it and made it 8726.

[00:15:38] Speaker 02:
What you're now arguing to us is he should have been rated under 7804 and 7805.

[00:15:44] Speaker 02:
And even if I were to agree with you, I can't reach that.

[00:15:47] Speaker 02:
That's a fact question.

[00:15:50] Speaker 04:
Your Honor, to respond to that, the type of change matters.

[00:15:53] Speaker 04:
And this gets into whether this change was a correction or not.

[00:15:58] Speaker 04:
And so this whole

[00:16:00] Speaker 04:
what we refer to as post hoc rationalization of is the board going back and saying the prior 15 years you've always been wrong about this and I would submit no that is not what the board is doing here what the board does instead is just flat misinterpret 7804 and 7805 as permitting overlap when by the plain terms they do not and the to the extent there is a

[00:16:27] Speaker 04:
factual mistake that is downstream from that, if you will.

[00:16:31] Speaker 04:
It is the predicate legal error of which we seek reversal, the factual finding, if any.

[00:16:36] Speaker 04:
And again, I do not think there is a factual finding here.

[00:16:39] Speaker 04:
I see the board and Appendix 31 as having said, number one, there is this painful scar itself.

[00:16:46] Speaker 04:
Number two, there is this mere involvement in the question, and Appendix 32 is

[00:16:51] Speaker 04:
What does the law require that I now do with this?

[00:16:54] Speaker 04:
I mean, this is a veteran's law judge at Plain Texas trying to maximize Mr. D'Amico's rating and just misunderstanding that these two diagnostic codes are mutually exclusive and do permit Act 425 commands this combination of the two.

[00:17:13] Speaker 03:
Is the question of whether diagnostic codes are mutually exclusive, is that a legal question or a factual question?

[00:17:20] Speaker 04:
It is a legal question, Your Honor.

[00:17:21] Speaker 04:
The diagnostic codes reside in federal regulation.

[00:17:24] Speaker 04:
This is an interpretation of federal regulation, which is an issue of law.

[00:17:30] Speaker 04:
I would be happy to address any further questions the panel has.

[00:17:34] Speaker 04:
Thank you, Mr. Niles.

[00:17:36] Speaker 02:
I'll restore some of your rebuttal time.

[00:17:38] Speaker 02:
We're going to hear from Mr. Holman.

[00:17:39] Speaker 02:
Thank you, Your Honor.

[00:17:40] Speaker 02:
Hold on a sec while they move stuff around, please, Mr. Holman.

[00:18:01] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:18:27] Speaker 00:
This case is

[00:18:28] Speaker 00:
A straightforward application of the diagnostic codes and just to step back and trace through what happened.

[00:18:34] Speaker 00:
Initially, Mr. D'Amico, who has one scar, which results in

[00:18:40] Speaker 00:
the painful and discomforting condition was given a rating of 7805 with a 0% non-compensable rating.

[00:18:50] Speaker 01:
7805 or 7804?

[00:18:51] Speaker 00:
Initially 7805, Your Honor.

[00:18:53] Speaker 00:
Then the VA revised the rating based on the painful nature of the scar under 7804 to give him a 10% disability rating.

[00:19:04] Speaker 05:
I'm sorry, the initial 7805 was a 0% rating.

[00:19:07] Speaker 00:
Yes, that's correct.

[00:19:08] Speaker 00:
And that is, at Appendix 46, is the initial 0% non-compensable rating.

[00:19:15] Speaker 00:
At Appendix 45.

[00:19:20] Speaker 03:
Was the issue there pain?

[00:19:22] Speaker 00:
Yes.

[00:19:23] Speaker 00:
The issue was upon examination.

[00:19:25] Speaker 00:
He described his pain and discomfort, the VA, in 1999 or 1998.

[00:19:34] Speaker 00:
Yes, in 1999, rated him at 10% for scars painful.

[00:19:39] Speaker 00:
7804, scars painful.

[00:19:44] Speaker 00:
Subsequently, the board gave him a rating by analogy.

[00:19:48] Speaker 00:
And this is what, Judge Moore, you were discussing under the neuralgia codes, the 8726.

[00:19:56] Speaker 00:
Because the board, and this is at 31 of the appendix, there's a discussion about how

[00:20:02] Speaker 00:
The medical examiners both felt that there may be some nerve involvement that is causing manifestations of pain and discomfort.

[00:20:08] Speaker 00:
They weren't sure that there is nerve involvement.

[00:20:11] Speaker 00:
They said that there may be some.

[00:20:14] Speaker 00:
And that's why the rating was by analogy and gave him a higher 20% rating for the neurology of the femoral nerve.

[00:20:22] Speaker 05:
Let me just ask you this question, and it's not going to be very well formulated.

[00:20:26] Speaker 05:
How does the board get to rating by analogy?

[00:20:34] Speaker 05:
Is there a regulation that says,

[00:20:37] Speaker 05:
always choose from all the diagnostic codes the ones that are either directly on point or by analogy.

[00:20:47] Speaker 05:
And you can even choose the ones that are by analogy if there's one that's directly on point, but you don't have to mention the directly on point one.

[00:20:56] Speaker 05:
Like, I think, one way of describing Mr. Niles' argument is, no, it can't do that.

[00:21:04] Speaker 05:
If there's one directly on point, it has to use that.

[00:21:07] Speaker 05:
And that's 7805.

[00:21:10] Speaker 05:
And then inform how to apply it by analogy.

[00:21:15] Speaker 00:
So I want to address your broad question, and then I want to address the specific argument that I think Mr. Niles is making, because they're different things.

[00:21:24] Speaker 00:
And so if there is a diagnostic code on point, the VA uses the diagnostic code on point.

[00:21:30] Speaker 00:
But these diagnostic codes cover conditions, conditions in the real world range, and there's different degrees.

[00:21:37] Speaker 00:
And so just like it has the power to do an extra scheduler rating, the VA has the ability to rate by analogy, and it does that.

[00:21:45] Speaker 00:
I don't have a specific regulation on hand, Your Honor, but the VA routinely does this, and it's uncontroverted.

[00:21:54] Speaker 00:
The problem, I think, with Mr. Niles's theory is that he claims that 7805

[00:22:00] Speaker 00:
is directly on point.

[00:22:01] Speaker 00:
And therefore, he says that this is some sort of gateway to get to the rating by analogy.

[00:22:07] Speaker 05:
I guess what I was hearing was there's a scar problem.

[00:22:11] Speaker 05:
7804 covers part of the scar problem.

[00:22:15] Speaker 05:
Still, though, there's another aspect to the scar problem.

[00:22:20] Speaker 05:
And that's what 7805 is about, other aspects of scar problems.

[00:22:29] Speaker 00:
That's not correct for a number of reasons.

[00:22:32] Speaker 00:
First, 7804 is down the line of scar problems.

[00:22:39] Speaker 00:
So it starts with 7800, which is scars of the face and neck.

[00:22:44] Speaker 00:
But then, for instance, 7801 talks about

[00:22:47] Speaker 00:
Scars in other areas that are deeper cause limited motion so if you've got a scar that impacts your motion you're in 7801 then there's scars that are of a certain size or area there are scars that They the board runs through this they're unstable.

[00:23:05] Speaker 00:
Yes, so they come up on Open up and so that's a problem then there's scars that are painful 7804

[00:23:11] Speaker 00:
And then 7805 just says, scars other, rate on limitation of function of affected parts.

[00:23:17] Speaker 00:
So if you don't fit into any of the four, the 7801, 2, 3, 4 categories, and you still have a scar that's causing you some sort of issue, you could potentially get a rating under that.

[00:23:28] Speaker 00:
It doesn't mean that, I think what Mr. D'Amico and his counsel are trying to say is that while there's a scar that's painful,

[00:23:36] Speaker 00:
But there's also something else, and therefore we get the benefit of both.

[00:23:39] Speaker 00:
But first of all, there is no something else.

[00:23:42] Speaker 00:
The only thing at issue, and I think Judge Prost highlighted this, is the pain and discomfort caused by this car.

[00:23:48] Speaker 00:
limitation on function.

[00:23:49] Speaker 00:
There's no other thing that's being claimed.

[00:23:51] Speaker 00:
And I'll note that that's a factual determination, too, that this court doesn't review.

[00:23:55] Speaker 00:
But even if it were to review that.

[00:23:56] Speaker 05:
That may be more than just an I'll note.

[00:24:00] Speaker 00:
True.

[00:24:01] Speaker 00:
That's right.

[00:24:02] Speaker 00:
It's beyond this court's jurisdiction.

[00:24:04] Speaker 00:
But there is no allegation of anything beyond pain and discomfort here.

[00:24:08] Speaker 00:
The issue was that the pain and discomfort that was caused

[00:24:15] Speaker 00:
by the scar to Mr. Damico, the board felt wasn't adequately covered by the 10% rating.

[00:24:24] Speaker 00:
And so the board thought that based on the medical exams, and this is at appendix 30, the board quotes the examiner stating that

[00:24:36] Speaker 00:
the veteran likely sustained superficial nerve damage resulting in the painful scar.

[00:24:41] Speaker 00:
So the board used that as a hook to look at rating Mr. Damico's scar by analogy to give him a higher rating.

[00:24:50] Speaker 00:
That doesn't mean that he now has... Why wouldn't it just be under scar other?

[00:24:55] Speaker 01:
I mean, wouldn't scar other include the nerve damage?

[00:24:59] Speaker 01:
No, because... And allow for a higher rating?

[00:25:01] Speaker 00:
It doesn't.

[00:25:02] Speaker 00:
It doesn't have a rating at all under SCAR other.

[00:25:05] Speaker 02:
I know, I see that.

[00:25:06] Speaker 02:
I'm looking and there's 10% under 7804 and there's no number next to 7805.

[00:25:10] Speaker 02:
What does that mean?

[00:25:11] Speaker 00:
It means you have to... When it says rate on limitation of function, so if the limitation is severe, you would get a high rating.

[00:25:20] Speaker 00:
It doesn't... I think it's intended as sort of a

[00:25:28] Speaker 00:
I don't want to use the word catch-all category, but it's intended as a category to capture

[00:25:32] Speaker 00:
things that don't fall into the prior diagnostic codes.

[00:25:36] Speaker 00:
Here, Mr. D'Amico did fall into 7804.

[00:25:38] Speaker 02:
No, the board changed it to 8726.

[00:25:44] Speaker 02:
So he no longer was fully encapsulated by 7804.

[00:25:49] Speaker 02:
They changed it to 8726.

[00:25:51] Speaker 02:
If you're saying 7805 is to be interpreted as anything that involves his car and doesn't fall into one of the others, why in the world wouldn't it be 7805?

[00:26:01] Speaker 00:
Because he's being rated, by analogy, under 8726.

[00:26:06] Speaker 00:
It's still the same scar and disability.

[00:26:08] Speaker 03:
Is it because it's still 7804 because it's still pain?

[00:26:13] Speaker 03:
So it's not out of nothing going on with respect to 8726 dislodges the fact that the effect here is pain?

[00:26:25] Speaker 00:
The only effect here is pain.

[00:26:26] Speaker 00:
And the pain initially was being rated as pain from the scar.

[00:26:30] Speaker 02:
But you have to answer just first question.

[00:26:32] Speaker 02:
No, because 7804 only allows for a 10% rating.

[00:26:36] Speaker 02:
So the board can't be currently giving him his 20% under 7804 because they're not allowed to do that.

[00:26:42] Speaker 00:
And they're not.

[00:26:43] Speaker 00:
They're giving it under 8,726.

[00:26:44] Speaker 00:
And I want to make sure I'm not complicating this any more than it needs to be.

[00:26:50] Speaker 00:
The board is giving him a 20% rating.

[00:26:52] Speaker 00:
for the pain caused by the skirtal scar injury under 8726.

[00:26:59] Speaker 00:
And that is a higher rating, and that is... Would it be right to say that...

[00:27:06] Speaker 05:
There's no real dispute that, or dispute is not right.

[00:27:12] Speaker 05:
The board didn't say that 7804 is inapplicable.

[00:27:16] Speaker 05:
It said it's applicable, but so is 8726.

[00:27:19] Speaker 05:
They are related in exactly the way the Pyramid regulation is addressed to.

[00:27:25] Speaker 05:
And we, therefore, won't give both, and we'll give the higher one.

[00:27:31] Speaker 05:
That doesn't mean the board has said 7804 is inapplicable, does it?

[00:27:37] Speaker 05:
Or did I just use language that, as Mr. Niles might say about VA language, it's VA language, not some other language?

[00:27:49] Speaker 00:
Well, I think you're correct, Judge Tarantone.

[00:27:52] Speaker 00:
The board says that at Appendix 32.

[00:27:54] Speaker 00:
I think there's this notion that Mr. Niles introduces that it must be sort of arithmetic addition.

[00:28:03] Speaker 00:
You have one rating, then you have the other, and you add them up.

[00:28:06] Speaker 00:
But the board essentially looks at his painful scar and says.

[00:28:10] Speaker 05:
But it invoked the pyramiding meditation, right?

[00:28:13] Speaker 00:
It did, right.

[00:28:14] Speaker 05:
And so there must be something common about the two things, which I would assume would actually mean that

[00:28:22] Speaker 05:
Pyramiding applies the Pyramiding regulation applies one is not saying that one or the other doesn't actually apply It's just not you're not going to get the benefit of both That's correct.

[00:28:34] Speaker 00:
He could have remained rated under the 7804, but would have been limited to 10% the board said that

[00:28:42] Speaker 00:
The pain and discomfort seems more than 10%.

[00:28:45] Speaker 00:
We're rating him by analogy.

[00:28:48] Speaker 00:
But we can't then combine the two because it's the same disability.

[00:28:52] Speaker 00:
It's the same pain.

[00:28:52] Speaker 02:
It may not be relevant given the time period we're in now.

[00:28:55] Speaker 02:
But Mr. Diamico argues that in 2008, the VA amended 7804 and 7805.

[00:29:03] Speaker 02:
Can you tell me how that amendment would affect things now?

[00:29:07] Speaker 02:
What is new 7805?

[00:29:10] Speaker 00:
New 7805 would not have an effect.

[00:29:15] Speaker 00:
And the Veterans Court addressed that as well in its opinion.

[00:29:18] Speaker 00:
But the new 7805, it still says, other effects of scars evaluated under diagnostic code, 7804 being one of them.

[00:29:31] Speaker 00:
it directly to evaluate any disabling effects not considered in a rating provided under diagnostic codes seventy eight hundred through seventy eight oh four under an appropriate diagnostic code but it's still his problem is that he only has sort of the one effect the pain and discomfort the question is the extent of that pain and discomfort it's not that he has pain and discomfort and he has some other limitation i think that would be a very different case in there

[00:30:01] Speaker 00:
7805 and 7804 may interact in different ways, but that's not the case here.

[00:30:06] Speaker 00:
He just has the pain and discomfort, and the question before the board was whether it was adequately rating that pain and discomfort.

[00:30:14] Speaker 00:
It was limited under 7804, and it chose to rate him by analogy.

[00:30:18] Speaker 00:
The result would be, on the same facts, the result would be the same under the new version of the regulations, Chief Judge Moore.

[00:30:25] Speaker 05:
Mr. Hellman, can I ask you this question?

[00:30:26] Speaker 05:
Mr. Niles pointed to Appendix Page 63, which is page 12 of his brief to the Veterans Court, where he did talk about 7805.

[00:30:42] Speaker 05:
didn't use language of gateway, but he talked about 7805 and said the board missed the boat here in not really attending to how 7804 and 7805 work together.

[00:30:54] Speaker 05:
The appendix doesn't have your brief to the Veterans Court.

[00:31:00] Speaker 05:
What, if anything, did you say about that invocation of 7805 to the Veterans Court in response?

[00:31:08] Speaker 00:
You're at the appendix does not have that judge Toronto, and I don't recall offhand what we said I think they the reason we included these in the appendix is to indicate that mr. Damico didn't Challenge the pyramiding as it was applied by the board at the Veterans Court and so he waived that argument I didn't have a chance to address it before the panel and I'm happy to go into our waiver argument if the panel would like to hear it, but I think Mr.. Damico was

[00:31:38] Speaker 00:
Was attacking the factual predicate of the board's decision and saying that it didn't it somehow didn't grapple with 7805 but the board didn't rate him under 7805 and so I imagine we probably pointed out the same in our

[00:31:54] Speaker 03:
And the heading under what we were looking at, starting at page 62, the heading in his brief is, alternatively, the board provided inadequate reasons and bases for not discussing whether service connection for Hizgar is protected and should have been retained.

[00:32:11] Speaker 03:
So it's a little unclear to me how that fits in with what we're talking about here.

[00:32:18] Speaker 00:
He made this argument, too, that

[00:32:20] Speaker 00:
that his service connection was being severed under 7804.

[00:32:24] Speaker 00:
But as the Veterans Court explained, that's not the case under this court's Reed v. Shinseki precedent.

[00:32:31] Speaker 00:
I'm happy to address questions on that, too, if the court would prefer.

[00:32:36] Speaker 00:
But I think the mere mention of 7805 without any discussion of pyramiding in his opening brief

[00:32:47] Speaker 00:
Court of Veterans claims suggest that he didn't preserve the issue below, and this court doesn't have jurisdiction to address it.

[00:32:53] Speaker 00:
Well, this court should not address it because it is weak.

[00:32:57] Speaker 00:
If there are no further questions, we respectfully request that the decision below be approved.

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

[00:33:03] Speaker 02:
Mr. Niles has some rebuttal time.

[00:33:08] Speaker 02:
Mr. Niles, please proceed.

[00:33:11] Speaker 04:
Thank you, Your Honor.

[00:33:12] Speaker 04:
I need to begin by modifying my earlier response to Your Honor's question about if 8726 applies, are we done here?

[00:33:21] Speaker 04:
And I answered that too narrowly, assuming that we get to 8726, as if we were in a vacuum.

[00:33:29] Speaker 04:
And my modification is that VA does have a duty to maximize benefits.

[00:33:34] Speaker 04:
And so if the court agrees that there is an avenue through which reading Mr. Domingo's

[00:33:44] Speaker 04:
would maximize the benefits there being 28% versus 20% under 87-26.

[00:33:53] Speaker 04:
VA did have a duty to do that.

[00:33:55] Speaker 04:
I also do want to speak very briefly to what pain is that issue or what these separate functional effects are, because the board did address this and saying this is a painful scar itself, this line on the body, the scar tissue.

[00:34:11] Speaker 04:
And then also on appendix 31,

[00:34:15] Speaker 04:
saying that the board will rate his pain and discomfort, again, discomfort going on the pain that 7804 contemplates in the area of his scar, not being limited to the scar itself.

[00:34:27] Speaker 04:
And so there are distinct effects here.

[00:34:31] Speaker 04:
And the question then as a matter of law is what to do about that.

[00:34:34] Speaker 04:
And unless the court has any further questions for me, that was all that I intended to clarify on the bottle.

[00:34:40] Speaker 04:
And Mr. D'Amico would request that this court reverse the Veterans Court's decision.

[00:34:45] Speaker 02:
Thank you, Mr. Niles.

[00:34:47] Speaker 02:
I thank both counsel for their argument.

[00:34:49] Speaker 02:
This case is taken under submission.