[00:00:02] Speaker 04: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:07] Speaker 04: God save the United States and this honorable court. [00:00:15] Speaker 00: Thank you. [00:00:16] Speaker 00: Good morning, everyone. [00:00:18] Speaker 00: The first argued case is number 20, 1647, Larson against McDonough. [00:00:24] Speaker 00: Mr. Adding, please proceed. [00:00:28] Speaker 02: Thank you, your honor. [00:00:29] Speaker 02: May it please the court. [00:00:31] Speaker 02: The Veterans Court aired when it found that it lacked jurisdiction to review a board decision that obesity and dysmetabolic syndrome, or DMS, are not disabilities that can result from personal injuries suffered or disease contracted during service. [00:00:45] Speaker 02: The Veterans Court's error is premised on a misinterpretation of its jurisdictional statute, 38 USC 7252B, which states that the Veterans Court may not review secretarial action adopting or revising the contents [00:00:58] Speaker 02: of the VA Schedule of Ratings of Disabilities, what we call in the briefs the VASRD or the VASRD. [00:01:06] Speaker 02: The parties agree that the question before the board was whether Mr. Larson's obesity and DMS were disabilities resulting from his exposures to various toxins and vaccines in Desert Storm. [00:01:18] Speaker 02: To answer this question, the board should have considered whether Mr. Larson's obesity or his DMS functionally impaired his earning capacity. [00:01:28] Speaker 02: The board's consideration of whether obesity or DMS functionally impaired Mr. Larson's earning capacity is not secretarial action adopting or revising the contents of the VASER-D under Section 1155 of 38 U.S.C. [00:01:43] Speaker 04: Mr. Attick, this is Judge Hughes. [00:01:46] Speaker 04: Your time is short, so let me just get to what's bothering me here. [00:01:50] Speaker 04: And I know you rely on founders and I think founders is pretty good case law for you on the notion that the [00:01:56] Speaker 04: board has to look at whether an alleged disability affects earning capacity and is service-connected. [00:02:04] Speaker 04: But let me ask you, assuming Saunders requires the same result here, what happens then? [00:02:10] Speaker 04: What happens if the board determines that the obesity does impact earnings compensation and is therefore a disability and finds that it's actually service-connected? [00:02:24] Speaker 02: Your honor, the next step in that process, if the board was to find that obesity and or DMS were service connected, the next step in that process would be to rate those disabilities. [00:02:35] Speaker 04: But how would they do that? [00:02:38] Speaker 04: Because it's not on the rating schedule. [00:02:41] Speaker 04: And there's several ways. [00:02:42] Speaker 04: We can't and the Veterans Court can't order the board to rate this, right? [00:02:48] Speaker 04: That's the whole point of the restriction on [00:02:51] Speaker 04: the Veterans Court and our court's review of the rating schedule is Congress didn't want the court talking about the rating schedule. [00:02:58] Speaker 04: So how would the board rate this? [00:03:04] Speaker 02: I disagree with the premise, first of all, Your Honor, respectfully, that the court can direct the board to rate something. [00:03:11] Speaker 02: What it cannot do is direct them how to rate it. [00:03:14] Speaker 04: Well, let's just assume I disagree with you. [00:03:16] Speaker 04: I don't want to quibble about that because I don't think you're right. [00:03:19] Speaker 04: that we can order the court or order the board to add a condition to the rating schedule or rate a condition that isn't already on the rating schedule. [00:03:29] Speaker 04: That's not the point of my question, though, and I don't want to argue about it. [00:03:33] Speaker 04: How is the board going to do this if it's not on the schedule? [00:03:40] Speaker 02: They would rate it by analogy first and foremost, Your Honor. [00:03:43] Speaker 02: They would look to the specific functional impairments of earning capacity as they affected Mr. Larson, whether it was a limited range of motion due to obesity, decreased endurance due to obesity, inability to hold prolonged fixed hostures due to disability, reduced hygiene due to his obesity, reduced stability leading to falls or injuries. [00:04:01] Speaker 02: They would look to different aspects of the rating schedule to rate that by analogy under 38 CFR 4.20. [00:04:09] Speaker 02: That is certainly something that the board has done in the past. [00:04:13] Speaker 02: The Veterans Court has reviewed and has jurisdiction to review whether a rating by analogy under 4.20 is proper. [00:04:20] Speaker 02: And it doesn't require that a specific condition be listed on the VAS or D. In fact, that's the whole point of 4.20 is to rate things that do not specifically appear. [00:04:32] Speaker 04: On the schedule. [00:04:33] Speaker 04: So given that, and, [00:04:36] Speaker 04: Look, I think this case is hard and it exposes a gap in the case law and in the statutes here. [00:04:42] Speaker 04: But given all of that, if we order the board to consider obesity and DMS and consider whether it's a service condition, aren't we in effect, even if not in name, ordering the VA to consider something as a condition that should be rated? [00:05:07] Speaker 02: I think to some extent that there's accuracy in that, Your Honor. [00:05:11] Speaker 02: I think that there is overlap between what constitutes a disability and how that disability is relating. [00:05:17] Speaker 04: Well, and you're getting right at my problem here, right? [00:05:20] Speaker 04: And part of this is we have Saunders out there. [00:05:23] Speaker 04: And I think Saunders already answers a lot of this question and just didn't consider the jurisdictional impacts. [00:05:30] Speaker 04: But we're bound by Saunders unless we reconsider it. [00:05:37] Speaker 04: If what we're doing by saying you've got to look at obesity and DMS and determine whether it's a disability and whether it's service-connected is in effect telling the VA that this is a condition that has to be rated on the schedule somehow, then isn't that pushing up against the restrictions on courts? [00:05:59] Speaker 04: looking at this rating schedule. [00:06:01] Speaker 04: And again, just assume that I don't think we can do that. [00:06:04] Speaker 04: I know you have some arguments about why we can, but I want to assume that we have a broad jurisdictional limitation on ordering the VA to add things to the rating schedule to consider what, you know, the rating should be and all of that. [00:06:20] Speaker 04: So isn't, in effect, if we say go ahead and rate obesity, saying, in effect, [00:06:25] Speaker 04: Even if we're not saying explicitly you have to consider this as something to be rated, that's what we're doing. [00:06:33] Speaker 02: I disagree with that, Your Honor, and I don't see necessarily the telling, and this may be what you don't want to quibble about, so I apologize, Your Honor, if I am going into that territory, but I don't see that the court telling [00:06:48] Speaker 02: the board to consider whether a certain basket of symptoms or a certain basket of impairments, whether those constitute a disability under 1110. [00:06:57] Speaker 02: I don't think that's a requirement that the board rate those or that the board... Let me ask you another hypothetical then that's from this. [00:07:06] Speaker 04: What if the VA goes back and follow, if we remand this and order the VA to consider whether obesity and DMS are disabilities and whether it was service connected? [00:07:15] Speaker 04: And they decide, yes, there are disability tests, there's evidence to service connect them. [00:07:19] Speaker 04: And they say, but this is not on the rating schedule, therefore we decline to rate it. [00:07:25] Speaker 04: Can the Veterans Court review that decision? [00:07:32] Speaker 02: If the court was to order the board to review whether or not obesity and DMS could be service connected and the board came back and said these are service connected conditions, but we declined to rate them. [00:07:42] Speaker 02: I think at that point that there would be a question involved as to whether or not the Veterans Court could review that determination or not. [00:07:51] Speaker 02: I think that gets into, I believe the case was, I'm drawing a bank at a moment, but I believe it was Wingard [00:08:01] Speaker 02: that said that when there's a 0% rating on the schedule, the court couldn't review whether or not that 0% was appropriate. [00:08:09] Speaker 02: And so I think that the Veterans Court would have some limitation in its ability to review whether or not the board's decision as to the rating element was appropriate or not. [00:08:20] Speaker 02: I think that the bar would cover that. [00:08:22] Speaker 04: Okay. [00:08:22] Speaker 04: Well, I get that. [00:08:23] Speaker 04: And that's, I mean, that's one of the answers I was thinking about. [00:08:26] Speaker 04: But let me approach you a little bit further because I think [00:08:31] Speaker 04: This is also possibly, what if the VA doesn't say we're going to rate this zero? [00:08:36] Speaker 04: What if they say we decline to give this any rating whatsoever? [00:08:40] Speaker 04: Because a zero percent rating is still in effect some type of rating and it has other consequences of getting secondary service connection and ancillary benefits. [00:08:49] Speaker 04: But what if they say we decline to go any further? [00:08:53] Speaker 04: Because all Sanders requires is that we consider disability and service connection. [00:08:58] Speaker 04: We've done that but we're not going to take any additional steps. [00:09:02] Speaker 04: What happens then? [00:09:05] Speaker 02: I think at that point what happens then is as the statutes require is that there would be a finding that the disability is service connected and that would open the door to other ancillary or derivative benefits available to the veteran. [00:09:17] Speaker 02: I don't know that there would necessarily without with the understanding that I'm speculating as to how the board might phrase that [00:09:24] Speaker 02: decision. [00:09:25] Speaker 02: I don't think that there would be an ability for the Veterans Court to review a filing that says we're not going to go any further and assign any rating, whether it says it's a 0% rating or whether there's no consideration of a rating at all. [00:09:37] Speaker 02: I think an argument could be made that that [00:09:41] Speaker 02: failure to rate is a failure to follow the strictures of 1155. [00:09:47] Speaker 02: But at that point, then, we're getting into that jurisdictional bar. [00:09:50] Speaker 02: So I think... Sure, sure. [00:09:51] Speaker 02: Let me... Thanks. [00:09:52] Speaker 04: That's a good... I appreciate that answer. [00:09:54] Speaker 04: And I think it's a very honest and candid answer. [00:09:56] Speaker 04: And I really... I appreciate not jousting too much on this. [00:10:00] Speaker 04: Let me switch gears just a little bit because I know your time is short. [00:10:05] Speaker 04: the VA hasn't added obesity and DMS, and if it looks like there's something out there, can the Veterans community file a 502 petition? [00:10:14] Speaker 04: Well, first, file a request with the Secretary to do a rulemaking to add obesity and DMS to the schedule, and if the Secretary declines, file a 502 petition to us to review that declination. [00:10:27] Speaker 04: Is that another route to get obesity and DMS considered as service-connected disabilities that should be on the [00:10:35] Speaker 04: rating schedule? [00:10:37] Speaker 02: Your Honor, I think that would be one route. [00:10:39] Speaker 02: I think that one route, as you mentioned, is that we could request rulemaking. [00:10:45] Speaker 02: And then depending on the secretary's response, we could challenge that under 502. [00:10:50] Speaker 02: I think that there may also arguably be a route to challenge the OGC presidential opinion as to obesity and whether or not it's a disease under that same process. [00:11:00] Speaker 02: I think that's very arguable. [00:11:02] Speaker 02: But I think that's another route that could be followed. [00:11:05] Speaker 04: Do you know if anybody has asked the Secretary to do a rulemaking on obesity and DMS? [00:11:12] Speaker 04: Mr. Larson has not. [00:11:13] Speaker 04: I am not aware if anybody else has. [00:11:15] Speaker 02: Okay. [00:11:16] Speaker 04: Well, I can ask the Governance Council. [00:11:18] Speaker 04: They may or may not know. [00:11:20] Speaker 04: Thank you. [00:11:21] Speaker 01: Counselor, this is Judge Raino. [00:11:24] Speaker 01: I want to go back a little bit because it seems to me that we're a step ahead to where this appeal actually brings us. [00:11:35] Speaker 01: It seems to me that even if we find that obesity constitutes a disability, doesn't the board have to find service connection first? [00:11:47] Speaker 01: Don't we have to send this back in order for there to be a determination on service connection at the first instance before we go on and determine any rating that's applicable? [00:12:01] Speaker 02: Yes, your honor, that's correct. [00:12:03] Speaker 02: The first question that has to be decided by the board is whether or not obesity or DMS can be disabilities under the Shedden test or under 1110. [00:12:12] Speaker 02: The second question is whether or not they have a nexus. [00:12:16] Speaker 01: Right. [00:12:16] Speaker 01: So the board based its decision on a requirement that a disability be listed on the schedule in order to be rateable. [00:12:24] Speaker 01: Does that requirement actually exist? [00:12:30] Speaker 02: I'm not familiar of any requirement that that exists. [00:12:33] Speaker 02: I know that the case law certainly in Saunders, and I believe there was a Veterans Court decision subsequent to this appeal in waive that says that the board may look to the rating schedule to see what the VA secretary considers functional impairments of earning capacity in making the decision as to what constitutes a disability. [00:12:51] Speaker 02: But I'm not aware of any rule, law, or regulation that directs the VA to find that [00:12:59] Speaker 02: based on the absence of a condition from the rating schedule that it cannot be service connected or that it cannot be a disability. [00:13:06] Speaker 00: Okay, but now is your final question, is your understanding of Saunders and the way precedent has evolved up to this stage that it's a necessary intermediate step first to move the disability to the rating schedule even if it's listed as zero or that the [00:13:29] Speaker 00: The VA is obliged to look at the particular case for the particular veteran and determine in that case whether there's a compensable disability. [00:13:46] Speaker 00: And thinking about Saunders, I think it leaves that open. [00:13:52] Speaker 02: Your Honor, I think that the way that we view it is that it's an individualized consideration, whether or not a particular condition can constitute a functional impairment of earning capacity. [00:14:02] Speaker 02: I think there's scenarios where the Secretary could come in and say, as a matter of regulation, that obesity is not a disability. [00:14:12] Speaker 02: I think that they could say that, and I think that that would raise questions about reviewability there. [00:14:16] Speaker 02: I think that they could certainly say that, but I think generally speaking, as the law stands now, it's an individualized consideration whether or not the particular functional impairments that the veteran suffers, regardless of the underlying cause or the underlying pathology, whether or not those result in a functional impairment of earning capacity. [00:14:37] Speaker 00: Okay. [00:14:37] Speaker 00: All right. [00:14:38] Speaker 00: Let's hear from the government and we'll save you rebuttal time. [00:14:40] Speaker 00: Mr. Kipura. [00:14:45] Speaker 03: Yes, thank you, Your Honor, and may it please the Court. [00:14:48] Speaker 03: The sole question before the Court is whether the Veterans Court has jurisdiction to review what conditions are considered a disability. [00:14:56] Speaker 03: And the controlling statutory provisions, as made clear by this Court's case law, establish that it does not. [00:15:03] Speaker 03: I'd first like to turn to the discussion that was had a moment ago regarding 38 CFR Section 4.20, which is the [00:15:15] Speaker 03: regulatory provision allowing for an analogous rating. [00:15:20] Speaker 04: Mr. Kipora, this is Judge Hughes. [00:15:23] Speaker 04: Let me, before you move on to that, your time is short, so let me just start with where I am. [00:15:29] Speaker 04: And that is, why isn't Saunders controlling here? [00:15:33] Speaker 04: Saunders said that you had to look at a disability and it didn't say that it had to be on the rating schedule or anything. [00:15:42] Speaker 04: It just said if it's an alleged [00:15:44] Speaker 04: disability and IE that it had some impact on earnings capacity, you looked at it and then you made the service connection. [00:15:51] Speaker 04: Isn't this on all fours and isn't that all we have to do here and say Saunders Control is you have to consider OB2B and DMS and whether there's an impact on earnings and whether it's service connected. [00:16:04] Speaker 04: And all that other hypothetical discussion about ratings and the schedule and the like is premature here. [00:16:12] Speaker 03: Well, your honor, with respect, Saunders held that the Veterans Court could not or held that the Veterans Court's interpretation of 1110 saying that pain could not be a disability was a misinterpretation of 1110. [00:16:31] Speaker 03: In fact, our position is that Saunders is consistent with Wanner and Weingard in that [00:16:40] Speaker 03: the Veterans Court does not have the authority to say either way what is or what is not a condition that can be rated by the Secretary. [00:16:53] Speaker 04: The difference... But that's not the question. [00:16:55] Speaker 04: I mean, this is... I understand. [00:16:56] Speaker 04: I think there's a gap here in the statute and there's some tension in the case law. [00:17:01] Speaker 04: But Saunders doesn't speak to the rating schedule at all. [00:17:05] Speaker 04: And the Veteran in this case is not asking us to review the rating schedule. [00:17:09] Speaker 04: whether obesity should be added to the rating schedule or rated under the rating schedule. [00:17:15] Speaker 04: He's simply asking for the same thing in Saunders, which is to determine whether it's a disability under 1110. [00:17:24] Speaker 03: Yes, I understand, Your Honor, but I think it goes more towards the fact that the disability is not on the rating schedule [00:17:35] Speaker 03: in effect, moots the question of whether or not there is a functional impairment, which was the primary issue in Saunders. [00:17:44] Speaker 03: In other words, even if Mr. Larson were considered to have a functional impairment, if the disability to which it's related is not on the schedule, then the rest of the question is moot because it can't be service connected. [00:18:04] Speaker 01: What is your legal authority to support that last statement you made? [00:18:12] Speaker 01: It seems to me that you're saying that there is a requirement that a disability be listed on the schedule in order for it to be eventually rateable. [00:18:24] Speaker 01: But what's the requirement? [00:18:26] Speaker 03: Well, yes, Your Honor, because under 1110, it's provided that [00:18:31] Speaker 03: any compensation that would be provided for a disability, the phrase that's in the statute is compensation as provided in the subchapter, which refers then to the rest of the statutory scheme, particularly 1155. [00:18:47] Speaker 03: And this court's holding in Warner stated that the Veterans Court could not review what is included on the rating schedule. [00:18:59] Speaker 03: So the question is not whether or not functional impairment actually exists here. [00:19:07] Speaker 03: It's whether or not that impairment could, in fact, be rated and whether or not the Veterans Court has jurisdiction under 7252C to review that. [00:19:17] Speaker 01: It sounds that that argument you just made is contrary to Saunders. [00:19:23] Speaker 01: And you're asking us to overrule Saunders. [00:19:28] Speaker 03: Respectfully, Your Honor, we're not asking the Court to overrule Saunders. [00:19:32] Speaker 01: Again, our view is that Saunders... Not directly, but your argument would lead to that conclusion. [00:19:43] Speaker 03: Well, Your Honor, the difference here as opposed to Saunders is that in Saunders, the Court was reviewing an interpretation of the Veterans Court, and it's a separate question [00:19:56] Speaker 03: as to whether or not a particular condition creates a functional impairment versus whether or not that functional impairment can be rated. [00:20:09] Speaker 03: Those are two separate issues, and Saunders only affects one of them. [00:20:13] Speaker 04: Let me ask you this. [00:20:14] Speaker 04: This is Judge Hughes again. [00:20:15] Speaker 04: I feel like you're skipping over something, but clearly Saunders, at least as applied here, could require the board to consider whether there's a functional impairment, right? [00:20:28] Speaker 03: The board could consider that, Your Honor, but without it. [00:20:32] Speaker 03: Right. [00:20:32] Speaker 04: But then, no, no, here's where I'm a little concerned because I'm thinking you're skipping over this issue. [00:20:38] Speaker 04: Is there anything in Warner or any of the other case law that prohibits the board from then considering whether that condition is service-connected? [00:20:49] Speaker 04: Not whether it's rateable, but just whether it's service-connected. [00:20:56] Speaker 03: Well, your honor, I think it goes back to the question that you asked opposing counsel. [00:21:00] Speaker 03: The answer is no, there's nothing preventing the board from considering that. [00:21:05] Speaker 03: But even if they did, what would happen then in that if it can't be rated and the secretary has chosen not to include that condition on the rating schedule and that determination is not subject to review, then even if it was the [00:21:25] Speaker 03: No benefits could be provided because it's not included on the rating schedule. [00:21:32] Speaker 04: Well, is that true? [00:21:33] Speaker 04: That no benefits? [00:21:34] Speaker 04: I mean, certainly no compensation benefits for that particular condition could be provided, but would that preclude... If you've got a service-connected disability, would that preclude ancillary benefits and other things that you can get or service-connected diseases even if it's not on the schedule? [00:21:57] Speaker 03: It would preclude it, Your Honor, because in order for the benefits to be provided, again, the connection, this nexus of an in-service incident has to be connected to the current disability. [00:22:19] Speaker 03: And without the disability being on the rating schedule, in a sense, there's nothing to service connect to. [00:22:26] Speaker 04: No, see, this is you're going around and around and you're not really responding to the question. [00:22:31] Speaker 04: Saunders already, I think, and you can dispute what Saunders requires, but I think it makes it very clear that to the extent that obesity and DMS can be considered disabilities that have an impact on earnings compensation, that the board can look at them. [00:22:53] Speaker 04: I don't see how we get around Saunders on that point. [00:22:56] Speaker 04: And so then the question is, and Saunders didn't reach that is, if the board concludes that obesity here does have an impact on the earning compensation, can it look at service connection, which doesn't have anything to do with the rating schedule. [00:23:11] Speaker 04: It has to do whether you can show that it was a disease or disability contracted by or aggravated by service, right? [00:23:20] Speaker 03: Well, Your Honor, I think there's a key difference in this case as opposed to Saunders, which was that the discussion... I don't want to hear all this. [00:23:29] Speaker 04: I'm going to ask you a yes or no question. [00:23:31] Speaker 04: If the board concluded that obesity and DMS had an impact with a disability in the sense that it had an impact on earnings capability, could the board then determine under the traditional factors whether or not it was service [00:23:51] Speaker 04: connected without regard to the rating schedule? [00:24:00] Speaker 03: I'm not sure how the board would get there, Your Honor. [00:24:03] Speaker 04: Wouldn't they just apply the regular test you use to determine whether something's service-connected or not? [00:24:12] Speaker 04: That has nothing to do with the rating schedule, does it? [00:24:17] Speaker 04: The rating schedule comes [00:24:18] Speaker 04: The rating schedule comes in at the end when you have a disability that's service-connected, and then you look at the schedule to see what the severity is, what the impact on earnings is, and then you give them a zero, a 10, a 40, a 100, whatever. [00:24:34] Speaker 03: Yes, I understand your question, Your Honor. [00:24:36] Speaker 03: So, yes, the issue of whether or not a particular condition was connected to service, yes, that question can be determined [00:24:47] Speaker 03: independent of the rating schedule. [00:24:49] Speaker 03: But what the board said here is that even after we go through all of that, if we get to the end and the current disability is not something that's included on the rating schedule, then no benefits, no service, nothing can be granted when we get to that point. [00:25:11] Speaker 04: But the board did not... Well, if that's what Saunders requires, [00:25:15] Speaker 04: then isn't that what SUNDERS requires? [00:25:16] Speaker 04: And then it's left to the veteran to decide to do with what they can with this service-connected disability that's not entitled to a rating. [00:25:25] Speaker 04: I mean, I think you're opposing, your friend on the other side seemed to concede that the courts couldn't force them to rate obesity and couldn't force them to put it on the schedule. [00:25:37] Speaker 04: So I don't see any real dispute here to a certain extent about like, [00:25:44] Speaker 04: Saunders, you know, I know you don't think Saunders requires this, but it doesn't seem like your friend on the other side is actually asking at the end of that for it to be rated under the schedule or the like. [00:25:56] Speaker 04: But in any event, we're not there. [00:25:58] Speaker 04: That would all depend on the first two questions, whether the board determines it's a disability and whether the board determines it's surface connected. [00:26:07] Speaker 04: And we're way premature on that because they didn't even address those questions. [00:26:13] Speaker 03: Well, Your Honor, again, the difference with Saunders, and I think the problem with the analogy to that here is that the appellant is trying to draw a connection between the discussion of pain in Saunders with obesity here. [00:26:29] Speaker 03: And in fact, in Saunders, the pain that was being discussed was related to an underlying condition, namely a bilateral knee condition, [00:26:39] Speaker 03: that the appellant in Saunders was alleging was causing pain. [00:26:45] Speaker 03: And the question was whether or not that pain could serve as a functional impairment, and the bilateral knee condition was, in fact, on the rating schedule. [00:26:55] Speaker 03: Here, the appellant is asking the obesity condition to essentially do both, that it's both the rateable condition as well as the condition that's causing the functional impairment. [00:27:08] Speaker 03: Whereas Saunders was only speaking to the second half of that. [00:27:12] Speaker 03: And again, as we discussed in the briefing, obesity could be a symptom of a rateable condition. [00:27:21] Speaker 03: I believe we refer to the Cushing's syndrome as something that is on the rating schedule that can manifest with obesity. [00:27:30] Speaker 03: But that's not what the appellant is asking for here. [00:27:34] Speaker 03: They're asking that obesity... Okay, I understand your point. [00:27:38] Speaker 04: I'm not sure that you, that I understand your reading of Saunders. [00:27:43] Speaker 04: That's not my, my reading of Saunders is not that the reason that they had to look at pain as a disability was because it was connected to another condition that could be service connected. [00:27:55] Speaker 04: My reading is it required them to look at pain as a disability in and of itself, which seems to me again, to be on all fours with whether the board can look at obesity [00:28:07] Speaker 04: as a disability in and of itself? [00:28:12] Speaker 03: Well, again, that's, you know, I think our reading of Saunders is that, you know, yes, the pain was what was causing the functional impairment, not that the pain itself was the underlying disability. [00:28:27] Speaker 04: And, you know, further as we... Can you point me anywhere in Saunders where it's made clear that they were relying on [00:28:37] Speaker 04: the need issue as why it wasn't a problem with the jurisdictional schedule. [00:28:46] Speaker 04: I mean, I know none of us discussed, but it didn't seem to me that they were talking about the pain in connection with the need issue. [00:28:53] Speaker 04: They were talking about pain as a disability for purposes of 1110, and they didn't require any further connection to a rateable condition. [00:29:03] Speaker 04: But if you have language from Saunders that suggests that they required it to be part of a rateable condition, I'm happy to look at it. [00:29:12] Speaker 03: Well, yes, Your Honor. [00:29:13] Speaker 03: In Saunders, the court refers to the VA disability rating regulations that treat pain as a form of functional impairment. [00:29:21] Speaker 03: And they cite to a number of different regulatory provisions that refer to pain [00:29:30] Speaker 03: as causing functional loss. [00:29:35] Speaker 03: And I think, again, this highlights the key difference, which is that in Saunders, this court was reviewing the Veterans Court's interpretation of 1110, not an action by the secretary, which is the case here. [00:29:50] Speaker 03: And that action is that the secretary has chosen not to include obesity on the ratings schedule. [00:29:58] Speaker 03: In Saunders, [00:30:00] Speaker 01: I see my time. [00:30:03] Speaker 00: Please continue. [00:30:04] Speaker 01: Judge Newman, I have a question to ask. [00:30:06] Speaker 00: Yes, please continue. [00:30:08] Speaker 01: In Saunders, when the case came to us, we already had a service connection, correct? [00:30:14] Speaker 01: There had already been... The question of service connection had already been established. [00:30:23] Speaker 01: And in this case, we don't have that. [00:30:27] Speaker 01: And it seems to me that we can't go any further until we send this back and have that issue determined. [00:30:34] Speaker 01: And you were taking a position a while back that tracks along to what I'm saying. [00:30:41] Speaker 01: And it just seems to me that we need to give the board the opportunity in the first instance to make a decision to service connection because that may kick off [00:30:57] Speaker 01: indexing to other disabilities. [00:31:02] Speaker 01: And it could be that as a result of that decision, the service connection issue, that the board determines that this should be rateable. [00:31:11] Speaker 01: We're not making that decision. [00:31:13] Speaker 01: All we're saying is that you have to first make a service connection determination. [00:31:19] Speaker 03: Well, respectfully, Your Honor, I think that such a decision would in effect be [00:31:26] Speaker 01: this court ordering the board or VA to include obesity on the rating schedule because... If we vacate and remand in order for the board to make a decision in the first instance as service connection, you're taking the position that that in effect is telling the board what to rate and what not to rate. [00:31:55] Speaker 01: that that addresses the content of the schedule? [00:31:59] Speaker 03: Well, yes, Your Honor, because again, even if the court were to hold it that the rating determination happens at the end of the process, if there can be no rateable condition, then essentially Mr. Larson would wind up in the same place in that [00:32:20] Speaker 03: the board could go through all of that. [00:32:22] Speaker 01: Well, maybe, but as a result of it's looking at the case and addressing the issue of service connection, couldn't the board at that time decide that it is rateable? [00:32:34] Speaker 03: Well, the board wouldn't have the authority to unilaterally add something to the rating schedule. [00:32:41] Speaker 01: Well, I guess I'm at the secretary, you know, on behalf of the board or being directed by the board. [00:32:49] Speaker 03: Well, Your Honor, the process for the secretaries to do that, again, the secretary could do that, and I believe Judge Hughes referenced it earlier, that there is a separate process for rulemaking where the secretary could make that determination or not. [00:33:07] Speaker 01: I understand that. [00:33:09] Speaker 01: We're not addressing that. [00:33:11] Speaker 01: I mean, nobody here is [00:33:13] Speaker 01: is I think is saying that we can order or we want to order the secretary to undertake rulemaking process to determine whether they should be rateable or not. [00:33:24] Speaker 01: It's just that I think that we're really putting the cart before the horseshoe, that there has to be a determination as to whether there's service connection, because that's really what leads you to the schedule. [00:33:38] Speaker 01: That's really what leads you to determine if there's any connection to any aspect of the schedule. [00:33:46] Speaker 01: And that's what Sanders is about. [00:33:47] Speaker 03: No, I understand your point, Your Honor. [00:33:51] Speaker 03: I think where the board's action here looked to what the veteran presented to it, which is that the condition he was seeking service connection for [00:34:05] Speaker 03: was or the conditions were obesity and DMS. [00:34:09] Speaker 03: And the board looked at those and said that those conditions were not rateable and chose not to undertake the service connection analysis because at the conclusion of it, it would not be possible for any benefits or any... How do we know that? [00:34:31] Speaker 01: How does the board know that? [00:34:34] Speaker 01: That's almost speculation. [00:34:38] Speaker 01: How do they know that? [00:34:39] Speaker 01: They're saying that after we conduct the entire process as to whether their service connection, this is how we're going to decide, and as a result, this is how we're going to decide. [00:34:50] Speaker 01: And actually, they could determine that obesity may constitute a disability, right? [00:34:56] Speaker 01: I mean, that could happen, correct? [00:35:00] Speaker 01: Well, if the question is whether or not obesity... I'm asking, can't the board in making a service connection determination conclude that obesity may constitute a disability? [00:35:13] Speaker 01: Yes, they could find that obesity... Well, then why are we not sending this back? [00:35:18] Speaker 01: I mean, why are we talking about sending this back to have the board make that determination in the first instance? [00:35:26] Speaker 03: Well, again, because, Your Honor, in order for any benefits to be granted, there has to be a provision within the rating schedule. [00:35:34] Speaker 03: In other words, the disability has to be something for which the Secretary has determined benefits are available. [00:35:41] Speaker 03: And then in this case, the Secretary has said this is not a condition where benefits may be granted. [00:35:48] Speaker 00: Isn't that contrary to Saunders? [00:35:52] Speaker 00: I mean, just to be clear, [00:35:53] Speaker 00: is the Secretary's position that unless a specified disability can be moved onto the rating schedule somehow that it's not compensable no matter how direct or strong the evidence of service connection? [00:36:14] Speaker 03: At bottom, Your Honor, yes, that's correct. [00:36:16] Speaker 03: That the Secretary and the preceding case law in Warner and Wingard [00:36:22] Speaker 03: determines that the secretary makes the determination for which conditions may be compensable and that that determination is not subject to review. [00:36:35] Speaker 00: And then Saunders fixed that, didn't it? [00:36:39] Speaker 00: Wasn't that the idea of Saunders? [00:36:43] Speaker 03: Well, respectfully, Your Honor, the view in Saunders was that the Veterans Court [00:36:48] Speaker 03: had made a determination that something could not be a disability. [00:36:54] Speaker 00: Well, Saunders took the case as it was handed to us. [00:36:58] Speaker 00: But the principle, I think Saunders recognized, was significant and, let me say, broad. [00:37:10] Speaker 00: Yes, Your Honor. [00:37:12] Speaker 00: It's not broad. [00:37:13] Speaker 00: It's limited to those particular procedural facts. [00:37:19] Speaker 03: Yes, your honor. [00:37:21] Speaker 03: I believe Saunders answered the question of whether what the board has to consider that could create a functional impairment, but it did not go to the requirements of the secretary. [00:37:37] Speaker 03: It did not require the secretary to include something on the rating schedule, which is what Warner and Wingard [00:37:46] Speaker 03: appointed to and what 7252 controls. [00:37:52] Speaker 03: Council, this is Judge Hughes again. [00:37:54] Speaker 04: Let me be clear. [00:37:55] Speaker 04: Nobody is asking the Secretary to add obesity to the rating schedule. [00:38:00] Speaker 04: They're asking for the Secretary to consider, just like it did in Saunders, whether it was a disability, and then if it is, do the further second step of determining whether it's service-connected. [00:38:13] Speaker 04: It seems like you're saying, well, at the end of that process, [00:38:16] Speaker 04: Nothing's going to be rateable here, so we're not going to go through that first process in the first instance. [00:38:23] Speaker 04: But I don't see anything in 1110 requires a condition to be rateable, and certainly Saunders seems to go the other way. [00:38:31] Speaker 04: So again, I understand at the end of the day we're going to have a really hard legal question of what do you do if in this case or in some other case down the road you end up with a condition that's service connected that's not on the rating schedule? [00:38:46] Speaker 04: But that question's not here. [00:38:47] Speaker 04: The question is, did Saunders require the secretary to consider conditions as disabilities that are, you know, and without regard to the rating schedule? [00:38:59] Speaker 04: It said yes. [00:39:01] Speaker 04: It seems like the second question that nobody addressed in Saunders, but would seem to be fall under the same thing is, if you do determine it can be a disability, then is it service connected? [00:39:14] Speaker 04: And again, I take it your position is, well, because nothing will come of it at the end of the day, we shouldn't go through that process. [00:39:21] Speaker 04: But isn't that backwards? [00:39:23] Speaker 04: Shouldn't you have to go through that process? [00:39:25] Speaker 04: And then again, we're going to have a hard legal question. [00:39:28] Speaker 04: What to do with it? [00:39:31] Speaker 03: Well, Your Honor, I guess what it comes down to is it's a question of, yes, again, the secretary, the statutory scheme, [00:39:44] Speaker 03: provides the secretary with the authority to determine, I've been using the term conditions or disabilities, which disabilities would be included on the rating schedule. [00:39:57] Speaker 03: In other words, which disabilities will be provided benefits. [00:40:03] Speaker 03: And that determination is what 7252 precludes from review. [00:40:10] Speaker 03: Again, we believe that Saunders is, in fact, consistent with this scheme in that the question there was whether or not a particular type of functional impairment could show an existing condition. [00:40:32] Speaker 03: And the court held that it could. [00:40:34] Speaker 03: But the pain itself was not what was being rated. [00:40:39] Speaker 03: So I think that's the difference here is that ultimately a ruling of the type that you described would end in one of two places. [00:40:51] Speaker 03: Either it would be the court essentially ordering the secretary to include obesity on the rating schedule, or it would result in even if the board found that [00:41:05] Speaker 03: Mr. Larson was functionally impaired by obesity and it constituted a disability. [00:41:10] Speaker 03: If it wasn't on the rating schedule, you know, that's what the board would hold. [00:41:14] Speaker 03: And that would be non-reviewable by 7252 as well. [00:41:21] Speaker 00: Okay. [00:41:21] Speaker 00: Any more questions for Mr. Kipura? [00:41:27] Speaker 00: I hear silence. [00:41:28] Speaker 00: Okay. [00:41:28] Speaker 00: Mr. Attick, you have your rebuttal time. [00:41:30] Speaker 02: Thank you, your honor. [00:41:35] Speaker 02: I think the court's instincts are correct that there is a hard legal question coming. [00:41:41] Speaker 02: And that question kind of runs around the perimeter of how do you rate a condition that is not listed on the Vassar D. I don't think the court can reach that question here because we don't yet know what the board is going to do. [00:41:54] Speaker 02: The board has not made any finding as to whether there is or is not a functional impairment of earning capacity. [00:41:59] Speaker 02: And they very well could. [00:42:00] Speaker 02: They could come back and look at Mr. Lahr's unique situation and say, [00:42:04] Speaker 02: The fatigue that Mr. Larson experiences as a result of his obesity is a functional impairment of earning capacity and they could rate it by analogy using the criteria for chronic fatigue. [00:42:15] Speaker 02: They could look at both obesity and BMS and say these are both [00:42:21] Speaker 02: functional impairments of earning capacity, but we're not going to rate them because they don't appear on the schedule. [00:42:28] Speaker 02: And then there could be a question whether or not the VA failed to follow its own regulation, 3.324, which talks about when there's two non-compensable service-connected conditions that the VA has the authority to give a 10% rating. [00:42:43] Speaker 02: Or they could come back and say that obesity is a disability and rate it under the extra scheduler factors of 3.321B. [00:42:51] Speaker 02: There's a lot that the board could do, and I think that the key question here is the first step that the board needs to take is to tell us whether or not there is or is not a functional impairment of earning capacity and whether that earning capacity impairment is related to Mr. Larson's exposures to toxins and vaccines and service. [00:43:10] Speaker 02: And so for that reason, we would ask the courts to reverse the Veterans Court's finding that it [00:43:16] Speaker 02: and return this case, remand this matter to the board to develop and review whether Mr. Larson's obesity and DMS constitute a functional impairment of his earning capacity and allow the case to proceed from there. [00:43:28] Speaker 00: Okay. [00:43:28] Speaker 00: Any questions for Mr. Attick? [00:43:32] Speaker 00: Okay. [00:43:33] Speaker 00: Hearing none, with thanks to both counsel, the case is taken under submission.