[00:00:00] Speaker 00:
We have a busy morning today.

[00:00:02] Speaker 00:
We've got four cases that are scheduled for argument.

[00:00:08] Speaker 00:
We have one case that's been submitted on the brief, and we've taken care of that case.

[00:00:15] Speaker 00:
So let's move on to our first case of this morning, Martinez-Bodum versus McDonough, docket 21-1328.

[00:00:29] Speaker 00:
Sir you're you're up and I understand counsel that you reserved three minutes of time for rebuttal Okay, you you may begin when you want Warning your honors may please the court

[00:00:50] Speaker 04:
Nothing in VA's mental health regulations prohibits service connection and compensation for Mr. Martinez-Boden's anxiety, sleeplessness, and eye twitching.

[00:01:01] Speaker 03:
Saunders tells us that for purposes of... Let me ask you about that.

[00:01:05] Speaker 03:
Let's get straight to Saunders.

[00:01:07] Speaker 03:
Are you really asking for this to be rated separately under 1110 apart from the schedule?

[00:01:13] Speaker 03:
Or are you asking us to interpret

[00:01:15] Speaker 03:
the particular mental disorder rating to include your client's condition.

[00:01:22] Speaker 04:
Your Honor, we're not asking for a separate rating under 1110.

[00:01:25] Speaker 03:
Right, so why is Saunders relevant?

[00:01:27] Speaker 03:
Saunders is just talking about pain, which isn't on the schedule anywhere, and says under 1110, it requires the secretary to consider whether any condition is service-connected.

[00:01:39] Speaker 03:
But that's not what you're asking for here.

[00:01:41] Speaker 03:
You're asking us to look at his symptom, symptomology, right, and place it within the schedule of 4.13.

[00:01:49] Speaker 03:
That is correct.

[00:01:49] Speaker 03:
Okay, so this is a flat-out I don't again I just want to clarify it doesn't seem to me.

[00:01:54] Speaker 03:
This is the Saunders case Maybe it has some roundabout application, but what you're asking us really to do is just a flat-out interpretation of four point one three I would agree that this is about the interpretation of four point one three zero whether it allows compensation for undiagnosed mental health conditions and

[00:02:11] Speaker 03:
Saunders is real okay, and when you say that you mean the the ratings above 0% Your argument is none of them specifically require a diagnosis So it's possible he could get a 10 or a 30 or above, but he can't get a zero

[00:02:27] Speaker 03:
OK.

[00:02:28] Speaker 04:
And if I may just expound just very quickly about why we believe Saunders is relevant to this case.

[00:02:33] Speaker 04:
The Veterans Court held that Saunders, in the definition of a disability under 1110, was somehow constrained by VA regulations.

[00:02:44] Speaker 04:
But this court's recent precedent in Larson

[00:02:49] Speaker 04:
clarified the rating schedule and its import into understanding what a disability is and Larsen said that they have nothing to do with each other whether sure but again you're starting to confuse me again nothing none of this deals with whether

[00:03:04] Speaker 03:
Your client's condition is separately rateable under 1110.

[00:03:08] Speaker 03:
We're just looking at the rating schedule you think is applicable and determining whether he falls within that or not.

[00:03:15] Speaker 04:
That's absolutely correct, Your Honor.

[00:03:16] Speaker 03:
Great.

[00:03:17] Speaker 03:
So whether it's, you know, I really, I fail to see the relevance of Saunders.

[00:03:23] Speaker 03:
I think it's does this rating schedule require a mental condition to be formally diagnosed above the 0% rate?

[00:03:31] Speaker 03:
Right.

[00:03:31] Speaker 04:
That is the fundamental legal question, I would agree.

[00:03:37] Speaker 00:
But you argue that Saunders is instructive in this instance.

[00:03:41] Speaker 04:
I believe as to whether there's the first element of service connection, which is a current disability, Saunders is supportive of that.

[00:03:49] Speaker 04:
Whether it causes functional impairment, it can be a disability.

[00:03:52] Speaker 04:
But then the compensation element, which is sort of the next element of rating, would fall to the plain language of the regulations.

[00:03:59] Speaker 04:
And we believe that it doesn't support the Veterans Court determination that only diagnosed conditions can be afforded compensation under 4.130 and 4.125A.

[00:04:10] Speaker 00:
Are there any conditions at the bottom of the scale there that have received a zero?

[00:04:16] Speaker 00:
Are there any conditions in there that have not been formally diagnosed?

[00:04:22] Speaker 04:
In the specific I just want to make sure I understand your your question judge ran in the specifically enumerated diagnoses no your honor Thank you by their plain language

[00:04:43] Speaker 04:
4.130 does not require a formal diagnosis.

[00:04:47] Speaker 04:
It is true, Judge Hughes, that the non-compensable rating does specifically use the phrase a diagnosed disability.

[00:04:55] Speaker 04:
But that particular phrase does not appear in the rest of the rating criteria, not in the 30, not in the 50, not in the 70, and not in the 100.

[00:05:02] Speaker 03:
Sure.

[00:05:03] Speaker 03:
But you agree that at least for the lowest 0% rating, you have to have a formal diagnosis.

[00:05:09] Speaker 03:
Yes your honor.

[00:05:10] Speaker 03:
So you're not trying to argue Sonder somehow get you a 0% rating even without a formal diagnosis under its precedent and its application to 1110.

[00:05:20] Speaker 03:
Agreed your honor.

[00:05:21] Speaker 03:
Absolutely.

[00:05:22] Speaker 03:
So all it all this is is a very simple question of

[00:05:25] Speaker 03:
Does 4.13 require formal diagnosis above the 0% level?

[00:05:30] Speaker 04:
Agreed.

[00:05:30] Speaker 03:
Yes, your honor.

[00:05:31] Speaker 03:
And you're relying on kind of the very textual reading that those words don't appear.

[00:05:37] Speaker 04:
Correct, your honor.

[00:05:38] Speaker 04:
And also that the 4.130 is structured differently than the secretary's successive rating criteria, which do build on itself, in which is the secretary

[00:05:49] Speaker 04:
showing through the text of the regulation that those lower requirements are found in the higher requirements, and that's absent in our view from 4.1 through zero.

[00:06:01] Speaker 03:
You mean in other regulations, they repeat the requirements in total and then add to them?

[00:06:08] Speaker 03:
Correct, Your Honor.

[00:06:08] Speaker 03:
Such as?

[00:06:09] Speaker 03:
And I take it the view of the Veterans Court and the Secretary here is that it's just clear that the minimum is you have to have a diagnosis.

[00:06:20] Speaker 03:
And for zero, the symptoms aren't severe enough.

[00:06:23] Speaker 03:
And their view is it has to build on that with increasing symptoms, which is the way it works for every other.

[00:06:29] Speaker 03:
Scheduled rating to generally right correct increase severity would lead to a higher percentage disability So why do you think it makes sense that for?

[00:06:39] Speaker 03:
Increased ratings you don't have to have a diagnosis when this is all about whether you have a mental condition or not I think this ties into and not to not to

[00:06:52] Speaker 04:
rehash why we think Saunders is important in this case, but I think this leads to why we think Saunders is important, because a disability must cause functional impairment in earning capacity.

[00:07:04] Speaker 04:
And if you don't have functional impairment and earning capacity, which would be the recognition of the 0% rating, then you're not going to be able to get that rating.

[00:07:13] Speaker 04:
If a veteran were to show functional impairment and earning capacity, they would satisfy the disability on the end.

[00:07:18] Speaker 03:
Yeah, but this is why I don't understand why you're relying on Saunders.

[00:07:21] Speaker 03:
That might be true if what you're trying to say is he has a condition that's not in any scheduler rating.

[00:07:27] Speaker 03:
but we still want it service connected under 1110.

[00:07:32] Speaker 03:
But if you're trying to put it in the scheduler rating, it has to fulfill the criteria of that.

[00:07:37] Speaker 03:
Sanders doesn't say anything about how we read scheduler ratings.

[00:07:41] Speaker 03:
It was completely a circumstance in all of our other cases, right?

[00:07:45] Speaker 03:
I think Philbin recently was obesity, which is not on the schedule.

[00:07:50] Speaker 03:
Those are all cases where we dealt with,

[00:07:53] Speaker 03:
that don't have a schedule.

[00:07:55] Speaker 03:
But if it has a schedule, again, aren't we just looking at whether the secretary correctly determined that its rating regulation requires middle condition to be diagnosed even if it doesn't explicitly say so?

[00:08:09] Speaker 03:
Yes, I agree with you, Judge Hughes.

[00:08:12] Speaker 03:
And what's your best argument on this?

[00:08:13] Speaker 03:
And can you also address, because this is, I think, is a little peculiar as compared to some other ones, is it explicitly incorporates the DSM, which I assume requires some kind of diagnosis of a mental condition to be qualified.

[00:08:31] Speaker 04:
Right.

[00:08:31] Speaker 04:
The DSM is a manual that contains diagnoses for mental health conditions.

[00:08:37] Speaker 04:
The DSM is instructive for the VA examiners and the VA raters to sort of understand when diagnoses are at issue.

[00:08:44] Speaker 04:
And I would also point you to 4.25a, Your Honor, in the conditional if.

[00:08:49] Speaker 04:
4.130 talks about the DSM insofar as informing both the examiners and the adjudicators about the explicit mental health conditions in the DSM.

[00:09:03] Speaker 04:
But as this court held in Stellers, the DSM

[00:09:06] Speaker 04:
doesn't replace or supplant section 4.130.

[00:09:10] Speaker 04:
It's 4.130 at the end of the day, as you noted, Your Honor, that decides whether there's compensation for an undiagnosed mental health disability or not.

[00:09:21] Speaker 01:
Can the VA ever ignore DSM-5 in a mental disorder case?

[00:09:28] Speaker 04:
Can they or have they, Your Honor?

[00:09:29] Speaker 01:
I'm sorry.

[00:09:30] Speaker 04:
Can they?

[00:09:30] Speaker 01:
Can they.

[00:09:31] Speaker 01:
Are they legally entitled to ignore DSM?

[00:09:35] Speaker 04:
I think in the instances of mental health symptoms without a diagnosis, it's not bound by the DSM, Your Honor, so yes.

[00:09:44] Speaker 03:
Why isn't the answer here if your client has mental health symptoms but hasn't gotten a formal diagnosis to ask for a new medical examination and determine whether he has the condition or not?

[00:09:55] Speaker 03:
Not try to get a rating based upon an undiagnosed condition.

[00:10:05] Speaker 04:
That's certainly a possible avenue, Your Honor.

[00:10:12] Speaker 04:
Did you try that?

[00:10:14] Speaker 04:
I don't believe that there was an argument made below.

[00:10:18] Speaker 04:
We didn't represent this client at the agency as to the adequacy of the examination, Your Honor.

[00:10:24] Speaker 04:
That's one avenue.

[00:10:25] Speaker 04:
But in this particular instance, the examination was very clear.

[00:10:28] Speaker 04:
It was checkbox no, no, no, no throughout the entire examination, no diagnosis.

[00:10:33] Speaker 04:
And then the board and the Veterans Court relied on that to deny the claim at that moment.

[00:10:42] Speaker 00:
Going back to that rating schedule, now, above the 0%, are there any non-diagnosed compensable conditions that are listed or could fall in those different categories?

[00:10:56] Speaker 04:
May I have a moment to just look at 4.130, Your Honor?

[00:11:06] Speaker 04:
So the explicit numbers of the diagnostic code do refer to diagnoses that are contained in the DSM.

[00:11:16] Speaker 04:
But the symptoms that are recognized in the rating criteria, although Mr. Martinez-Boden's condition doesn't raise to the level of a formal anxiety disorder, he does have anxiety.

[00:11:26] Speaker 04:
He does have sleeplessness.

[00:11:27] Speaker 04:
He has the symptoms that are

[00:11:30] Speaker 04:
Contemplated by a rating under four point one three zero without that particular diagnosis is that does that answer your question judge right now Yes, but they don't specifically exclude or include symptomology without diagnosis and

[00:11:51] Speaker 04:
The rating schedule does.

[00:11:53] Speaker 04:
Our position would be the rating schedule.

[00:11:55] Speaker 03:
Well, that's what it comes down to, right?

[00:11:57] Speaker 03:
I'm sorry, Your Honor.

[00:11:57] Speaker 03:
That's what it comes down to, whether we interpret this rating schedule as building on the requirements that are in the first level and going up, which is the way these rating schedules usually work, or whether, for some reason, VA intended only at the baseline for it to be diagnosed, and then above, it's just looking at symptomatology without a specific diagnosis of a condition.

[00:12:19] Speaker 04:
I think based on that question, Your Honor, if I may just clarify my answer to whether every single rating criteria builds upon itself.

[00:12:27] Speaker 04:
And when I said yes to that question, I meant insofar as it increases in severity.

[00:12:31] Speaker 04:
Not every single one of the secretary's rating criteria build upon every single one of the lower ratings requirements.

[00:12:38] Speaker 04:
Those are a few and far between in the rating schedule.

[00:12:41] Speaker 04:
Diabetes is a perfect example, which this court reviewed in Middleton.

[00:12:45] Speaker 04:
Symptom A, symptom A, symptom B, symptom A, symptom B, symptom C, and so forth.

[00:12:49] Speaker 04:
There's also headaches which the CAVC looked to.

[00:12:53] Speaker 03:
Sure, but almost, am I confused?

[00:12:56] Speaker 03:
I thought almost everything builds in terms of severity.

[00:13:00] Speaker 03:
If you have a service-connected knee disorder, it builds in terms of flexion and range of motion from if it's

[00:13:11] Speaker 03:
only mildly impacted it, it's at a lower level.

[00:13:13] Speaker 03:
And then if the flexing and range of motion get even more limited and more limited as it goes up, you get higher ratings.

[00:13:19] Speaker 03:
Isn't that, that's what I mean, if I'm using the wrong words, but it seems to me that that's characteristic of all the rating schedules.

[00:13:27] Speaker 03:
There may be examples where it's not, but that's largely the way it works.

[00:13:31] Speaker 03:
Is it not?

[00:13:32] Speaker 04:
It does increase in severity, Your Honor, but I think the range of motion example

[00:13:40] Speaker 04:
because it's based on 15 degrees, 30 degrees, 60 degrees of limitation of motion is slightly different when you have a specifically enumerated symptom like the diagnosis and whether that particular symptom or that particular requirement extends throughout the entire rating criteria.

[00:13:59] Speaker 04:
Our position is that when the secretary chooses to make that sort of explicit rating criteria, it's a successive rating criteria.

[00:14:05] Speaker 04:
And it looks very different than 4.130 looks.

[00:14:09] Speaker 00:
OK, you're into your rebuttal time.

[00:14:11] Speaker 00:
Would you like to reserve what you have?

[00:14:13] Speaker 04:
If there are no further questions, Your Honor, I'll reserve the remainder of my time.

[00:14:39] Speaker 02:
May it please the court.

[00:14:41] Speaker 02:
We agree with our opposing counsel that this is a standard regulatory interpretation case and that Saunders does not apply to these circumstances.

[00:14:48] Speaker 02:
The relief that the claimant appellant in seeking in this case is service connection compensation under the mental disorder

[00:14:56] Speaker 02:
a ratings table.

[00:14:57] Speaker 02:
For that reason, this strictly pertains to the proper interpretation of the relevant regulations, section 4.125 and section 4.130.

[00:15:07] Speaker 03:
What's wrong with his argument that because the rating schedule doesn't explicitly include diagnosed condition above 0%, that you just look at the symptomology and determine whether it should be rated at that level?

[00:15:21] Speaker 02:
I think that's their best argument, Your Honor, to be fair.

[00:15:24] Speaker 02:
It doesn't repeat that specific requirement.

[00:15:26] Speaker 02:
But I think it's important to review the regulation as a whole.

[00:15:29] Speaker 02:
So that's precisely what the Veterans Court did.

[00:15:31] Speaker 02:
It looked at the preamble language.

[00:15:33] Speaker 02:
It said it emphasized the import of the DSM-5 diagnosis for purposes of that ratings table regulation.

[00:15:40] Speaker 02:
And then it lists 30 specific mental disorders.

[00:15:44] Speaker 02:
And then it says, this is the ratings table that applies to these specific diagnosed mental disorders.

[00:15:50] Speaker 02:
You were to say that symptoms were only required in order to use that rating table.

[00:15:54] Speaker 02:
There would be no reason to list diagnostic codes at that point.

[00:15:57] Speaker 02:
There would be no reason to say, these are the 30 recognized mental disorders.

[00:16:01] Speaker 02:
So what the Veterans Court did was it looked at the regulation as a whole.

[00:16:04] Speaker 02:
It said, look, we recognize.

[00:16:05] Speaker 02:
And it acknowledged this.

[00:16:06] Speaker 02:
It acknowledged the fact that that diagnosis requirement wasn't repeated, but it looked at the regulation as a whole, looked at the preamble language.

[00:16:14] Speaker 02:
looked at the 30 specific diagnostic criteria, looked at the ratings table language itself, and says, look, the regulatory framework as a whole leads to a specific conclusion.

[00:16:23] Speaker 02:
That's in order to be compensated under this ratings table, we require a diagnosis.

[00:16:27] Speaker 02:
It further backed that interpretation by referring back to section 4.125.

[00:16:32] Speaker 02:
And what the court found was, look, if you look back at 4.125, which concerns diagnosis for mental disorders, that

[00:16:39] Speaker 02:
Regulation specifically states if you don't have a diagnosis that conforms to the DSM-5 you send it back to the VA examiner to substantiate that diagnosis.

[00:16:49] Speaker 02:
We think the Veterans Court got it precisely right.

[00:16:52] Speaker 02:
It recognized the potential collision with Saunders.

[00:16:55] Speaker 02:
It acknowledged that issue, but it said in this specific case, based on the relief that the claimant-depellent is seeking, based on the compensation he's seeking, based on the specific ratings table he's trying to employ to seek compensation, that ratings table specifically says you need a diagnosis.

[00:17:11] Speaker 00:
And what do you see, in your view, what is the collision with Saunders?

[00:17:15] Speaker 02:
It could be a collision if you were to say that the regulations somehow truncate the ability of Section 1110 to define disability.

[00:17:23] Speaker 02:
But again, that's not the relief that the claimant appellant is seeking in this case.

[00:17:27] Speaker 02:
What the claimant appellant is specifically seeking is compensation under a very specific rating table that's defined by regulation.

[00:17:34] Speaker 02:
And that's specifically what we want our winner.

[00:17:37] Speaker 01:
So you're conceding that the veteran has a disability.

[00:17:40] Speaker 01:
The question is whether it's compensable.

[00:17:43] Speaker 02:
Correct.

[00:17:43] Speaker 02:
That's the issue in this case.

[00:17:44] Speaker 02:
It's whether the service connection disability that he's claiming he has is compensable under this very specific rating.

[00:17:52] Speaker 01:
That's what I mean.

[00:17:53] Speaker 01:
But I mean, if Saunders' question was, well, do you have a disability?

[00:17:58] Speaker 01:
Right.

[00:17:59] Speaker 01:
Is pain a disability?

[00:18:00] Speaker 01:
So you're not arguing that he doesn't have a disability.

[00:18:03] Speaker 01:
The question is, is his disability compensable?

[00:18:06] Speaker 02:
Well, I think what the Veterans Court found, and the answer to that is no, that's not the issue in this case.

[00:18:11] Speaker 02:
What the Veterans Court specifically found is based on the relief that the claimant-depellant was seeking.

[00:18:16] Speaker 02:
You're seeking compensation for a mental disorder under this particular ratings table.

[00:18:20] Speaker 02:
You don't get it because you don't have a diagnosis for a mental disorder.

[00:18:24] Speaker 03:
So hypothetically, if the DSM were slow to catch up, and this happens, I think it happened with PTSD, and there's some dispute out there about whether this is an acknowledged mental condition, a veteran might be able to come in and say, look, I have this constellation of symptoms.

[00:18:44] Speaker 03:
It's not recognized yet by the DSM, but yet it is, should be considered a service-connected disability.

[00:18:51] Speaker 03:
That might be an opportunity for Saunders.

[00:18:57] Speaker 03:
I know you don't want to engage.

[00:18:58] Speaker 02:
That's a hard question.

[00:18:59] Speaker 02:
I understand that.

[00:19:00] Speaker 02:
It's a hard question.

[00:19:01] Speaker 02:
The reason why I'm inclined to say no is because the DSM-5 is incorporated by regulation.

[00:19:07] Speaker 02:
The only reason that the DSM-5 has any import in this case

[00:19:10] Speaker 02:
is specifically because the regulation says it does.

[00:19:13] Speaker 03:
It was subject to- Just to be clear, I'm not asking you to concede anything.

[00:19:16] Speaker 03:
I know you're representing the secretary and you don't want to bind them in anything.

[00:19:22] Speaker 03:
But it does seem to me that back before PTSD got recognized,

[00:19:27] Speaker 03:
because the VA was slow and the people behind the DSM were really slow.

[00:19:31] Speaker 03:
But there was some agreement that maybe this was a service-connected disability in a constellation of symptoms.

[00:19:38] Speaker 03:
Under Saunders, it probably could have come in.

[00:19:41] Speaker 03:
It might not have gotten them anything.

[00:19:42] Speaker 03:
I'm still unclear what Saunders actually gets people when they get service-connected for a disability that's not on a schedule.

[00:19:51] Speaker 03:
I'm not even clear whether they get a zero rating or the VA just says, yes, we have to service connect it, but it's not rateable at all.

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

[00:20:00] Speaker 03:
But that might apply in that circumstance.

[00:20:04] Speaker 02:
And to be fair, I think that's what the Veterans Court is struggling with now is, you know, how do we define a disability if there's no rateable context for these types of decisions?

[00:20:13] Speaker 01:
Do you know what happened in Saunders?

[00:20:16] Speaker 01:
I mean, I tried to trace it, and Saunders' attorney prevailed

[00:20:20] Speaker 01:
need your fee for money, meaning he must have won something.

[00:20:23] Speaker 02:
I don't know what the ultimate outcome is of that case, unfortunately, Your Honor.

[00:20:27] Speaker 01:
So my question maybe is the wrong question, but I don't understand what the case of controversy is here.

[00:20:32] Speaker 01:
My understanding is that the appellant admits that he couldn't get a zero rating because he doesn't have a diagnosis.

[00:20:40] Speaker 01:
And he doesn't have any symptom that fits anywhere in ranking up to 10, 30, 50, or 100%, right?

[00:20:47] Speaker 02:
Right.

[00:20:48] Speaker 02:
To be fair to the other side, I think you're right, Your Honor.

[00:20:53] Speaker 01:
I mean, do we have a live case of controversy here?

[00:20:56] Speaker 01:
He can't get anything.

[00:20:57] Speaker 02:
Yeah, I think in the theoretical sense, he's saying I should have just been considered.

[00:21:01] Speaker 01:
Aren't you asking for an advisory opinion?

[00:21:05] Speaker 02:
Just consider me is the relief he's seeking.

[00:21:07] Speaker 02:
Just consider me for some sort of compensation under these ratings table, even if I don't have an advisory opinion.

[00:21:11] Speaker 01:
Where can he fit?

[00:21:13] Speaker 02:
I don't know.

[00:21:14] Speaker 01:
That's a question for the other side.

[00:21:17] Speaker 02:
Symptom that fits above zero percent Right and in some respects that's probably a factual finding I would agree with you that looking at the ratings table itself It's hard to see where the symptoms.

[00:21:30] Speaker 01:
He's describing would fit somebody comes into our court and says what we'd like to have a Interpretation of a regulation so we might you know be able to use it some other day some other case It doesn't have any effect here

[00:21:46] Speaker 02:
Understood, Your Honor.

[00:21:47] Speaker 02:
And so I don't want to speak for the other side, I think.

[00:21:49] Speaker 02:
But the relief they're seeking is just considerable.

[00:21:52] Speaker 01:
Well, the other side can, when they get up, can speak to what I've just said.

[00:21:55] Speaker 01:
I just don't see a live case of controversy here.

[00:21:57] Speaker 02:
Understood, Your Honor.

[00:21:58] Speaker 00:
We're looking at the controversy created by the Veterans Court interpretation of 4.125, right?

[00:22:05] Speaker 02:
Correct.

[00:22:07] Speaker 02:
So what the Veterans Court held, and this is what I mean by the relief they're seeking is you should have considered me under this regulation.

[00:22:13] Speaker 02:
And what the Veterans Court held was no, it doesn't apply to you because you don't have a diagnosis.

[00:22:18] Speaker 02:
That's the baseline requirement.

[00:22:20] Speaker 02:
The regulation clearly builds upwards.

[00:22:22] Speaker 02:
That requirement.

[00:22:23] Speaker 02:
is imposed on every one of the ratings criteria.

[00:22:25] Speaker 02:
That makes sense, according to the regulatory framework.

[00:22:28] Speaker 02:
So they're challenging that holding.

[00:22:29] Speaker 02:
That's the case or controversy.

[00:22:31] Speaker 02:
As to what specific relief they would get out of it, I think that was Judge Clevenger's question.

[00:22:35] Speaker 02:
I'm not precisely sure.

[00:22:37] Speaker 02:
It's not clear to me, based on the rating table, where they would fit, even if they got that relief.

[00:22:43] Speaker 00:
Could a veteran have a mental disorder that's a functional impairment to earning capacity?

[00:22:51] Speaker 00:
And that mental disorder includes symptoms that are described in the rating schedule.

[00:22:56] Speaker 02:
That hypothetical is hard to answer, and I'll explain why.

[00:22:59] Speaker 02:
If you look at the 30 diagnosed mental disorder or the diagnostic criteria, they're stated pretty generally.

[00:23:06] Speaker 02:
So you have things like unspecified disorders.

[00:23:08] Speaker 00:
So the answer is yes.

[00:23:09] Speaker 00:
I mean, it could be the case.

[00:23:12] Speaker 02:
It's hard for me to think of a situation where one of these diagnostic codes wouldn't fit under some type of diagnosed disorder unless you just didn't have one.

[00:23:20] Speaker 02:
I'm not a medical expert, so I can't say.

[00:23:23] Speaker 02:
But based on the hypothetical, the way that the diagnostic codes are set up, they're very general.

[00:23:28] Speaker 02:
They're supposed to be all-inclusive.

[00:23:31] Speaker 02:
And the way they're phrased, generalized anxiety disorder, other unspecified disorders, other types of disorders, they're very nonspecific for the specific reason that you want to be as inclusive as possible.

[00:23:43] Speaker 02:
So for me to think that someone could hypothetically come to the VA and say,

[00:23:47] Speaker 02:
I have something that I can diagnose outside the DSM-5.

[00:23:50] Speaker 02:
I know it doesn't fit under these very broad diagnostic codes, but still you should compensate me.

[00:23:55] Speaker 02:
It's hard for me to imagine a situation where that situation could arise.

[00:23:59] Speaker 00:
Is that why?

[00:24:00] Speaker 00:
Because that's how you view the regulation?

[00:24:04] Speaker 02:
That's how we view the regulation, Your Honor.

[00:24:06] Speaker 02:
It's very broad.

[00:24:07] Speaker 02:
The diagnostic criteria or the diagnostic codes that apply to this rating stable are intentionally very broad.

[00:24:13] Speaker 00:
But at the same time... But a minimum, that would put him down at zero, right?

[00:24:17] Speaker 00:
At the very bottom.

[00:24:18] Speaker 00:
I mean, he would make it... That better would make it on the rating schedule at zero.

[00:24:23] Speaker 00:
Assuming... And zero is better than no consideration at all.

[00:24:28] Speaker 02:
Assuming he had a diagnosis, yes.

[00:24:30] Speaker 02:
But the 0% rating requires a diagnosis, correct, expressly.

[00:24:35] Speaker 00:
And that's a lesson we learned from Saunders, isn't it?

[00:24:40] Speaker 02:
I'm not entirely sure.

[00:24:42] Speaker 02:
I'm sorry, Your Honor.

[00:24:45] Speaker 02:
We think the Veterans Court got it precisely right here.

[00:24:48] Speaker 02:
It analyzed.

[00:24:50] Speaker 03:
Let me clarify, because I'm a little confused.

[00:24:55] Speaker 03:
about your view of Saunders.

[00:24:58] Speaker 03:
And again, I'm confused about what Saunders requires too.

[00:25:02] Speaker 03:
But even if there existed this mental condition that could be diagnosed but wasn't part of the DSM, that could be service connected under 1110 under Saunders, your view is that wouldn't get him a 0% rating on this schedule.

[00:25:20] Speaker 03:
It may get him some other kind of rating, depending on what the Veterans Court does with Saunders.

[00:25:25] Speaker 03:
It wouldn't put him on here because the 0% specifically requires a diagnosis.

[00:25:31] Speaker 03:
That's correct, Your Honor.

[00:25:33] Speaker 02:
It specifically incorporates the DSM-5.

[00:25:35] Speaker 02:
So it's conceivable they could promulgate a DSM-6.

[00:25:38] Speaker 02:
But the DSM-6 wasn't incorporated by regulation.

[00:25:40] Speaker 02:
It wasn't subject to notice and comment.

[00:25:42] Speaker 03:
I also got the sense you were suggesting that because the DSM-5 is so broad and inclusive, it is definitional of what constitutes a mental disorder or a mental condition.

[00:25:57] Speaker 03:
It creates all those conditions, and that outside of it, there just aren't mental conditions that could be rateable under Saunders.

[00:26:04] Speaker 03:
Right.

[00:26:05] Speaker 02:
And I don't want to say absolutely.

[00:26:06] Speaker 02:
I understand.

[00:26:07] Speaker 02:
But yeah, I think that is kind of the import of the DSM-5.

[00:26:10] Speaker 02:
It's a trusted source.

[00:26:11] Speaker 02:
It's subject to notice and comment.

[00:26:13] Speaker 02:
It's expressively laid out in the regulation.

[00:26:15] Speaker 02:
Everyone agrees that this is the source we're going to rely upon.

[00:26:19] Speaker 02:
In a way, you know, you're...

[00:26:21] Speaker 02:
Giving VA examiners this vast authority to assess mental health conditions which are hard to evaluate just by their nature because they always They're based on subjective.

[00:26:30] Speaker 02:
You know explanations of symptoms and somehow a VA examiner has to look at and say okay How do we ground this and what the VA has said well?

[00:26:36] Speaker 02:
We're going to ground this with a trusted source and established source DSM 5 and

[00:26:40] Speaker 02:
We're going to reaffirm the backing of that anchor through the promulgation of a regulation.

[00:26:46] Speaker 02:
We're going to subject it to notice and comment.

[00:26:48] Speaker 02:
That's precisely what the VA did.

[00:26:49] Speaker 02:
And that's the import of the DSM-5 in this case.

[00:26:51] Speaker 02:
It's that the VA promulgated the importance of that manual in this regulation, the specific diagnostic manual that we're talking about in this case.

[00:26:59] Speaker 02:
So we think the Veterans Court got it precisely right.

[00:27:02] Speaker 02:
It recognized the text of 4.130 in its totality.

[00:27:05] Speaker 02:
They compared that against the language of 4.125.

[00:27:09] Speaker 02:
It acknowledged the existence of Saunders, and it recognized it.

[00:27:12] Speaker 00:
Looking at your argument, how do you see that the agency handled PTSD?

[00:27:21] Speaker 02:
PTSD, Your Honor?

[00:27:22] Speaker 00:
Yes.

[00:27:22] Speaker 00:
Adopting your, just looking at what you just argued, how is it, what happened with PTSD?

[00:27:33] Speaker 02:
For Mr. Martinez-Bodan's PTSD claim, Your Honor?

[00:27:36] Speaker 00:
No, not Mr. Martinez.

[00:27:37] Speaker 00:
I'm talking about the disorder.

[00:27:40] Speaker 00:
How did the disorder, how was it handled in the initial stages?

[00:27:47] Speaker 02:
I don't know that there was a, I do know that there was a, I think there might have been a PTSD claim referenced.

[00:27:54] Speaker 03:
I don't mean to speak, I think he's asking historically.

[00:27:59] Speaker 03:
Aren't you going back to the beginning?

[00:28:01] Speaker 00:
Yes, I'm going back.

[00:28:03] Speaker 03:
Oh, OK.

[00:28:05] Speaker 03:
I'm not sure your honor, I'm sorry.

[00:28:07] Speaker 00:
Okay.

[00:28:08] Speaker 03:
I'm not prepared to answer that question.

[00:28:10] Speaker 03:
I mean all of that occurred prior to the VJRA, so we don't have a Veterans Court or even opinions from our court about what was going on at the VA at the time.

[00:28:23] Speaker 02:
We respectfully request that the court affirm the decision of the Veterans Court.

[00:28:27] Speaker 00:
Okay, thank you.

[00:28:32] Speaker 00:
Mr. McTarnaghan will restore you to three minutes of your rebuttal.

[00:28:42] Speaker 03:
Thank you very much, Your Honor.

[00:28:43] Speaker 03:
Can I just ask you specifically about a point that the Secretary's Council just made, which is that the DSM is very broad and very encompassing and all-inclusive.

[00:28:55] Speaker 03:
In what scenario do you think there are

[00:28:58] Speaker 03:
mental conditions that exist but don't fall within that range.

[00:29:05] Speaker 04:
Well, I think, Your Honor, brought up post-traumatic stress disorder.

[00:29:08] Speaker 04:
I think it's a perfect example of that, which the court expounded upon.

[00:29:11] Speaker 03:
Sure, I know.

[00:29:12] Speaker 03:
But I don't understand the history of that.

[00:29:13] Speaker 03:
I don't know it either.

[00:29:15] Speaker 03:
So I don't want to say one way or another.

[00:29:18] Speaker 03:
But it may be that that either just wasn't diagnosed because nobody considered it a mental condition.

[00:29:25] Speaker 03:
Or that it got diagnosed as some other kind of.

[00:29:28] Speaker 03:
I mean it used to be called shell shocking there was all kinds of ways to describe it.

[00:29:33] Speaker 03:
So.

[00:29:34] Speaker 03:
If this is so broad the DSM is so broad as to include just general.

[00:29:41] Speaker 03:
Anxiety disorders are very general things Why isn't it that that's what's intended to be all-inclusive?

[00:29:48] Speaker 03:
And what you should be trying to do is get your client a medical examination to consider them under the full range Instead of coming up with this undiagnosed condition under Saunders right well Your honor there are still very explicit

[00:30:06] Speaker 04:
requirements that must be met under a DSM diagnosis.

[00:30:10] Speaker 04:
So for instance, for anxiety disorder, there's a certain number of days that one must be affected by that in order to confirm the specific diagnosis.

[00:30:19] Speaker 04:
So I would say although the DSM is a helpful diagnostic manual, it's not the universe of functional impairments caused by service, caused by mental health symptoms.

[00:30:32] Speaker 03:
Well, I understand that.

[00:30:34] Speaker 03:
How do we know whether it's an actual mental health condition unless somebody's agreed that this constellation of symptoms constitute a mental health situation?

[00:30:44] Speaker 03:
We have the experts that come up with the DSM, and then we have the people at the VA applying it using medical examination.

[00:30:54] Speaker 03:
Who is going to determine that your client has a mental condition

[00:31:01] Speaker 03:
Is it just based on symptomology?

[00:31:04] Speaker 03:
Sorry, that word.

[00:31:05] Speaker 03:
I struggle with it.

[00:31:08] Speaker 04:
So I would say, yes, it is based on symptomology.

[00:31:11] Speaker 04:
And here, the examiner noted and the board found that Mr. Martinez-Boden confidently, incredibly reported his symptoms of anxiety, sleeplessness,

[00:31:22] Speaker 03:
And I twitching as related to service-connected diabetes your honor and so if in but that's a different So I get that but that's not connecting it to a mental condition that's connecting it to diabetes And he could have tried to get compensation as secondary to diabetes probably I don't know if that's possible But you're trying to say it's a separate mental condition, right?

[00:31:45] Speaker 04:
Well, Your Honor, the CAVC actually explicitly held they could not get anything related to the diabetes because of what they perceived as the 1110 issue.

[00:31:54] Speaker 04:
But the examiner would take a look at the symptoms.

[00:31:56] Speaker 04:
They would note the symptoms.

[00:31:58] Speaker 04:
And they would determine if they were using the correct rule, which is what has yet to happen here, Your Honor.

[00:32:03] Speaker 04:
The board wasn't using the correct rule.

[00:32:05] Speaker 04:
The CAVC wasn't looking.

[00:32:07] Speaker 04:
I'm sorry.

[00:32:07] Speaker 04:
I see that my time is expired.

[00:32:10] Speaker 04:
The CAVC is not using the correct rule.

[00:32:12] Speaker 04:
So the examiner wasn't held to the construct that I think that we're talking about right now, which is, OK, there's no diagnosis.

[00:32:19] Speaker 04:
So what's next?

[00:32:21] Speaker 04:
What are these symptoms caused by?

[00:32:24] Speaker 04:
And are they related to service?

[00:32:29] Speaker 01:
Ray, do you have any questions?

[00:32:29] Speaker 01:
Well, it seems to me that what you want is to be able to go to an examiner or an RO and try to show that your client has occupational and social impairment

[00:32:39] Speaker 01:
that would qualify under the 10 reading?

[00:32:42] Speaker 04:
Yes, Your Honor, that is correct.

[00:32:44] Speaker 01:
And that would, I mean, I suppose what happened in Saunders is somebody brings in evidence about the fact that you were criticized by your boss or you were fired or something else happened to you in terms of your occupational or your social impairment that you want to connect to the fact that you have these identified mental shortcomings.

[00:33:09] Speaker 04:
I would agree with that analysis, Your Honor.

[00:33:11] Speaker 04:
And the prejudice here is no one ever looked to that inquiry, because Mr. Martinez-Rodin has anxiety.

[00:33:17] Speaker 04:
He has sleeplessness.

[00:33:18] Speaker 01:
So moving up the scale to 30 and to 50, your argument is that no veteran should be denied the chance to show that they have these occupational and social impairments just because they didn't get a diagnosis.

[00:33:35] Speaker 04:
Correct, Your Honor.

[00:33:36] Speaker 04:
And then also to be able to meet the other elements of symptoms.

[00:33:39] Speaker 04:
Isn't anxiety on the DSM?

[00:33:42] Speaker 04:
Anxiety disorder, which is, as we were sort of discussing a bit earlier, Your Honor, that has very specific requirements in order to meet that diagnosis, which Mr. Martinez voted didn't.

[00:33:52] Speaker 04:
But that doesn't mean that these symptoms could potentially cause functional impairment in earning capacity, such that he deserves a rating if it's related to his service.

[00:34:01] Speaker 00:
OK.

[00:34:02] Speaker 00:
Thank you for your argument.

[00:34:03] Speaker 04:
Thank you very much, Your Honors.