[00:00:00] Speaker 03: May it please the court, Kenneth Carpenter appearing on behalf of Mr. Clifford Hanser. [00:00:06] Speaker 03: The regulation at issue in this appeal does not have a statutory predicate and is titled Stabilization of Disability Evaluations. [00:00:17] Speaker 03: The Veterans Court has addressed this regulation in four presidential opinions, beginning first with the Lehman [00:00:27] Speaker 03: case followed by Smith, Brown, and Faust. [00:00:31] Speaker 03: In this case, however, the single-judge decision below determined that the question posed by Mr. Hanser in his appeal had been resolved by the Veterans Court's decision in Simon versus Wilkie, which was decided in 2018. [00:00:51] Speaker 01: Mr. Carpenter, I understand Lehman suggests it's a guideline. [00:00:57] Speaker 01: All of the other cases suggest it's a firm rule or a definition. [00:01:02] Speaker 01: We're not bound by any of those. [00:01:04] Speaker 02: No, you're not. [00:01:05] Speaker 01: So why don't you skip over what the Veterans Court may or may not have said and go to why you think that this statute should be construed as a guideline and not a definition. [00:01:22] Speaker 01: I should say regulation. [00:01:24] Speaker 03: Yes, yes. [00:01:25] Speaker 03: OK, go ahead. [00:01:26] Speaker 03: That's fine. [00:01:28] Speaker 03: I think the central reason is that the language of the regulation speaks in terms of a continuous rating at the same level. [00:01:39] Speaker 03: It then follows that with a parenthetical that says five years or more. [00:01:45] Speaker 03: The question then becomes, as a matter of regulatory interpretation, [00:01:49] Speaker 03: Is that a guideline, or is that a mandatory requirement? [00:01:54] Speaker 04: Well, five years or more is rather definite. [00:01:57] Speaker 04: It doesn't say EG five years. [00:02:01] Speaker 03: No, it does not, Your Honor. [00:02:04] Speaker 03: is if it were written in that way in the regulation as opposed to the use of the parenthetical, I would agree with that statement. [00:02:13] Speaker 03: However, it's the use of the parenthetical in the context of a regulation that has no statutory predicate and in a system [00:02:23] Speaker 03: that is designed to protect the veteran in a regulation that was written by the secretary, whose sole purpose was to protect ratings that had been in place for a long period of time. [00:02:36] Speaker 04: Well, why isn't Simon binding? [00:02:38] Speaker 03: Because Simon, your honor, dealt with a completely different question. [00:02:42] Speaker 03: Simon does not control the outcome of this case, because Simon was A, a Q case, and B, a case that dealt with the question of whether or not [00:02:52] Speaker 03: having two different rating levels during that continuous period constituted qualification for protection under provisions A and B. Subparagraph C of this regulation deals only with the question of whether or not the provisions of subparagraphs A and B will be applied. [00:03:18] Speaker 03: And it is that first sentence of the three sentences in subparagraph C that raises that question. [00:03:27] Speaker 03: We believe that the proper interpretation of that, which was not decided in Simon, nor is in any way bound, as the chief judge clearly indicated, by this court in any of the previous decisions. [00:03:42] Speaker 03: So it's a question for this court to look at that in the context of the intent of this regulation [00:03:50] Speaker 03: in reading it in the context of all three paragraphs to determine whether or not it was the intention that this regulation create a mandatory bar. [00:04:01] Speaker 03: We think that's too high a standard and too unreasonable a standard to be applied in this situation. [00:04:11] Speaker 01: Well, if it wasn't a definition, then [00:04:18] Speaker 01: What would the criteria be under which you would have the VA analyze what is a sufficiently long period or not? [00:04:29] Speaker 01: I mean, I'll be honest. [00:04:30] Speaker 01: I tend to prefer clarity in these regulations and not uncertainty. [00:04:35] Speaker 01: So in your case, it's not four years and 360 days. [00:04:40] Speaker 01: It's four years and I think roughly two months? [00:04:43] Speaker 01: 10 months. [00:04:44] Speaker 01: 10 months? [00:04:44] Speaker 01: Oh, 10 months. [00:04:45] Speaker 01: So it is closer to the five-year period. [00:04:47] Speaker 01: But what would you have? [00:04:49] Speaker 01: I mean, are we going to create some multi-factor totality of the circumstances test for what creates a long period or not? [00:04:57] Speaker 01: I mean, how would you have the VA do this in a way that maintains the goal of clarity for implementation so that we have consistency, which is very important in this area of the law? [00:05:07] Speaker 03: It certainly is. [00:05:08] Speaker 03: And it's important to veterans who face, if you will, this sort of Damocles hanging over the veteran's head [00:05:16] Speaker 01: when they get to four years and 10 months, only to have the same rating in place. [00:05:32] Speaker 01: that the VA would use to evaluate the more ethereal concept of long period if it's not a definitive time period? [00:05:40] Speaker 01: Is it a totality of the circumstances test? [00:05:42] Speaker 01: How would you have the VA assess what constitutes a long period and what does not? [00:05:48] Speaker 03: Well, let me begin with the fact that I think they need to address it, which was not addressed in this decision, that he was at, as it were, the end of that period as described in the regulation. [00:06:01] Speaker 03: So that wasn't addressed at all. [00:06:03] Speaker 03: But for the ultimate test, it has to be whether or not it is consistent with the intent of A and B, which is to provide protection. [00:06:15] Speaker 01: The intent in A and B. Again, you're really not answering my question. [00:06:19] Speaker 01: I apologize. [00:06:20] Speaker 01: If you don't want me to find this definitional, I need you to articulate for me what the analysis in particular is [00:06:30] Speaker 01: the VA should use to assess what amounts to a long period and what does not amount to a long period. [00:06:37] Speaker 01: Because I'm not so favorably inclined towards just saying, OK, it's not five years. [00:06:43] Speaker 01: I have no clue what it is. [00:06:44] Speaker 01: I want something specific from you. [00:06:46] Speaker 03: I apologize, Your Honor. [00:06:48] Speaker 03: It must be a totality of the circumstance test. [00:06:52] Speaker 03: That is the only test that is consistent with the clear expression of intent in creating this regulation, subparagraphs B, A, and B in the first instance. [00:07:03] Speaker 04: Well, that's vaguer than the five-year test. [00:07:07] Speaker 03: It is, Your Honor. [00:07:09] Speaker 03: But what we're dealing with here is a test that accomplishes the intent of this regulation. [00:07:17] Speaker 03: And the intent of the regulation is to protect ratings that have been in place for a long or continuous period of time. [00:07:26] Speaker 04: The intent of the regulation is shown by what it expressly states. [00:07:32] Speaker 04: Now, you talk about a sword of Damocles. [00:07:35] Speaker 04: Whether the parentheses were there or not, the same sword still exists. [00:07:43] Speaker 03: Well, Your Honor, imagine for a moment that that parentheses wasn't there. [00:07:47] Speaker 03: Then we would be in the situation we are in now. [00:07:50] Speaker 03: So the question becomes, can the VA, can the secretary write a regulation that uses parentheses that creates this type of problem with the clarity question that Chief Judge Moore was correctly presenting here? [00:08:06] Speaker 03: And I believe that that's not consistent with the intent of this regulation. [00:08:11] Speaker 03: Because the only purpose of subsection C is to exclude the requirement for an examination that identifies material improvement under the ordinary conditions of life. [00:08:23] Speaker 03: And that is that test that is being denied [00:08:28] Speaker 03: Mr. Hanser by this subsection C when he is within two months of meeting the parenthetical requirement of at least five years. [00:08:39] Speaker 02: Mr. Carpenter, this regulation applies to any type of disability, right? [00:08:45] Speaker 03: Any type of disability rate, yes. [00:08:47] Speaker 02: And that's anything we could possibly imagine in terms of medical and health conditions. [00:08:53] Speaker 02: So I am concerned that if we read this as just a guideline, [00:08:58] Speaker 02: uh... it is going to get arguments that certain types of disabilities which maybe would only be expected to run a short course of time uh... i don't know a year or something that it's it's a long period in the context of that particular illness whereas other things that maybe you're going to have for life you know it's maybe even five years won't be considered long wouldn't that create a great deal of ambiguity i don't think so because the phrase in the regulation is continuous [00:09:28] Speaker 03: So it has to meet some level of continuity at the same level. [00:09:35] Speaker 03: And then the question becomes, does that begin at two years? [00:09:39] Speaker 03: Does that begin at three years? [00:09:41] Speaker 03: Or does that begin at four years? [00:09:42] Speaker 02: So it could be different for different types of ailments, correct? [00:09:45] Speaker 03: Well, it could be, Your Honor, but that's not the way that the regulation is written. [00:09:50] Speaker 03: The regulation applies across the board to every condition, regardless of its underlying nature, unless you look, as we suggest in our briefs, to the second sentence, which then talks about the notion of not likely to improve, and that stabilized conditions get that benefit [00:10:15] Speaker 03: and conditions that are not stabilized, which goes to your question, do get the benefit. [00:10:21] Speaker 02: I think that hurts you because some disabilities, sadly, [00:10:25] Speaker 02: we may know very early on are not likely to improve. [00:10:29] Speaker 02: And then the VA may get an argument that it's not likely to improve. [00:10:36] Speaker 02: It's been a long period, because in the context of this particular disability, even a couple months could be a long period. [00:10:43] Speaker 03: But with respect, Your Honor, they deal with that in subparagraph A. They talk about the different conditions and how they are medically different in their course of action. [00:10:55] Speaker 03: And the term that seems to be used consistently, although it is not defined, is a condition that is stabilized. [00:11:04] Speaker 03: That is covered in A, which I believe addresses your question. [00:11:09] Speaker 03: Because it's then a question not of whether you apply the A and B protections, but it's a question of they must apply if there has been, with the totality of circumstances, a continuous period of raiding at the same level. [00:11:28] Speaker 03: Thank you very much, Your Honors. [00:11:28] Speaker 03: I'll reserve the balance of my time for my rebuttal. [00:11:31] Speaker 00: Thank you. [00:11:32] Speaker ?: Thank you, Mr. Carpenter. [00:11:33] Speaker 00: Ms. [00:11:33] Speaker 00: Pullen? [00:11:34] Speaker 00: Good morning, Your Honors. [00:11:36] Speaker 00: Elizabeth Pullen, on behalf of the Secretary, and may it please the Court, because the Board properly applied 38 CFR 3.344 in Mr. Hanser's case, where his disability rating was not in effect for five years or more, the decision of the United States Court of Appeals for Veterans Claims should be affirmed. [00:12:01] Speaker 01: Well, but I think the question is, does it have to be in effect for five years or more? [00:12:06] Speaker 01: I mean, I really think the question that is in dispute here is the interpretation of this regulation, whether or not five years is definitional or just a guideline. [00:12:16] Speaker 00: Your Honor, it's definitional. [00:12:18] Speaker 01: Well, I'm glad that you think so, but why? [00:12:21] Speaker 00: Because the first sentence describes the rating, how long it lasts. [00:12:27] Speaker 00: And then that it was included as a parenthetical does not take away from its ordinary meaning. [00:12:34] Speaker 00: I don't understand. [00:12:35] Speaker 00: I guess I'm just hearing Mr. Hanser say, well, because it was an parenthetical, it can be discounted. [00:12:42] Speaker 00: Adding it in a parenthetical. [00:12:45] Speaker 01: I didn't understand him to say it could be discounted. [00:12:47] Speaker 01: I understood him to say it is not a definition, per se. [00:12:51] Speaker 00: I think it exemplifies or further provides information on the first sentence of when a rating. [00:12:58] Speaker 01: But what you think is kind of irrelevant, right? [00:13:01] Speaker 01: Because your personal opinion is not really relevant to how I interpret this. [00:13:05] Speaker 01: Let me give you a question that's very specific that might help you get on track. [00:13:09] Speaker 01: Are there cases, for example, that talk about as a canon of construction how items in parentheticals ought to be treated? [00:13:20] Speaker 01: Generally be treated as definitional should they generally be treated as when you said exemplary by the way that isn't definitional Exemplary would be an eg which is exactly what Judge Laurie said is not present So I actually think when you said exemplary that's a problem for you You actually were arguing against your own position at that point So why don't you tell me are there cases that would help inform my thinking? [00:13:46] Speaker 01: Items in parentheses should or should not be treated as definitional? [00:13:53] Speaker 00: Your Honor, I can't think of a specific case in analyzing, especially in this court, of analyzing a parenthetical. [00:14:01] Speaker 00: In the brief, we provided the Good Samaritan case and the other case to look at the language and the construction and the plain meaning of the language. [00:14:09] Speaker 01: So to your knowledge, there is no general rule [00:14:12] Speaker 01: about how a parenthetical should be treated under, for example, the canons of statutory interpretation, where we have a lot of canons that dictate as a general rule how things ought to work. [00:14:25] Speaker 01: To your knowledge, there is no general rule. [00:14:28] Speaker 00: Not today. [00:14:29] Speaker 00: I can't recite them for you, Your Honor. [00:14:31] Speaker 04: Why aren't you arguing Simon? [00:14:35] Speaker 00: I was going to get there, Your Honor. [00:14:37] Speaker 00: I think Judge Mormon's decision [00:14:39] Speaker 00: specifically when he said it was a common sense approach to the plain language of the regulation could be informative to this court. [00:14:50] Speaker 00: And as Mr. Carpenter pointed out, there were several cases at the Court of Appeals for Veterans Claims that outlined or applied this rule, approximately four that said you needed to get to the five-year threshold and five more that recognized [00:15:05] Speaker 00: When you got to the threshold, then the protections of subsections A and B applied. [00:15:11] Speaker 04: Does the Simon have a parenthetical five years? [00:15:15] Speaker 00: It did. [00:15:15] Speaker 00: It was the same regulation, Your Honor. [00:15:17] Speaker 00: The regulation changed in the early 90s, and the Simon case was in 2018. [00:15:22] Speaker 01: Is Simon one of our decisions? [00:15:24] Speaker 00: It is not, Your Honor. [00:15:25] Speaker 01: Whose decision is it? [00:15:27] Speaker 01: The Court of Appeals for Veterans Claims. [00:15:29] Speaker 01: And isn't it our job to review statutory interpretation de novo? [00:15:33] Speaker 01: It is. [00:15:34] Speaker 01: So we're not bound by Simon, right? [00:15:35] Speaker 00: No, Your Honor. [00:15:36] Speaker 01: The fact that the Veterans Court said that five-year period was definitional is not binding on this court, correct? [00:15:43] Speaker 00: No, Your Honor. [00:15:44] Speaker 00: It is not binding. [00:15:45] Speaker 00: It's our hope that you would look at it, especially since that court is analyzing this particular regulation. [00:15:52] Speaker 00: as informative to your all's decision. [00:15:54] Speaker 01: I'm sorry. [00:15:56] Speaker 01: Go ahead. [00:15:57] Speaker 01: Is it your view that our deference plays any role in the interpretation of this regulation? [00:16:04] Speaker 00: I don't believe our deference should know, Your Honor. [00:16:07] Speaker 00: In this [00:16:09] Speaker 00: In this instance, the facts of this case reveal that there is no dispute whether he met the five-year threshold, as we would urge this court to interpret the regulation. [00:16:21] Speaker 00: Also, looking at our, there was no improper deference [00:16:26] Speaker 00: Um, because the court or the board and the court below looked at how that reg applied to the facts of this case. [00:16:34] Speaker 00: So the United States position or excuse me, the secretary's position is you don't have to analyze or get to whether deference was proper or not. [00:16:41] Speaker 02: So layman is also of course not binding on us, but, uh, why was that incorrect? [00:16:47] Speaker 02: It seems that in layman, the, uh, veterans court viewed this very regulation as not definitional. [00:16:54] Speaker 00: Your Honor, in analyzing Lehman, two points for y'all to consider, please. [00:17:00] Speaker 00: First, that decision is very fact-specific. [00:17:04] Speaker 00: And I would ask the court to limit it to those facts. [00:17:08] Speaker 00: And if you look carefully at the Lehman decision, you'll see that [00:17:12] Speaker 00: In any event, the court in that decision found that the veteran in that case did meet the five-year rules. [00:17:18] Speaker 00: It was a matter of how those five years were counted. [00:17:21] Speaker 02: I saw that, and I think it's Dick Dunn again not finding on us, but it did seem in that case that the Veterans Court also viewed this particular provision as just a guideline. [00:17:33] Speaker 02: So why should we not be more inclined to agree with that than with Simon? [00:17:40] Speaker 00: Your Honor, after Lehman, a couple of other Veterans Court's decisions explained the way in which the regulation should be interpreted, specifically Smith and also Simon. [00:17:53] Speaker 00: And for those reasons, especially looking at the facts. [00:17:57] Speaker 01: What are the reasons? [00:17:58] Speaker 01: That's what we need to know. [00:17:59] Speaker 01: Not just that there were Veterans Courts that treated it as definitional, but what are the reasons that a statutory interpretation should lead us to the conclusion it is definitional? [00:18:12] Speaker 00: The parenthetical, Your Honor, provides additional explanatory information about what the first sentence of the regulation is. [00:18:20] Speaker 00: Every parenthetical does that. [00:18:22] Speaker 01: And yet, across the panoply of decisions, and by the way, you should know that the government has in many instances argued to the Supreme Court that parentheticals in other cases are not definitional. [00:18:33] Speaker 01: Many, many briefs, if you went on Westlaw and searched for it, you would find them yourself. [00:18:38] Speaker 01: So there are many instances in which the government itself argues that things in parentheticals are not definitional. [00:18:44] Speaker 01: So there is definitely no general rule that because something's in a parenthetical, it is, in fact, definitional. [00:18:50] Speaker 01: In fact, what the government has repeatedly argued to the Supreme Court and this court is context matters. [00:18:56] Speaker 01: We have to look at the context of the overall statute. [00:18:59] Speaker 01: This is meant to be a somewhat friendly question in that I'm trying to help you [00:19:04] Speaker 01: find a way to explain to me why this should not be treated as definitional. [00:19:09] Speaker 01: Because the mere fact that it's in parentheses, the government has itself argued on many occasions, including to the Supreme Court, does not mean it is definitional. [00:19:18] Speaker 01: So you can't just stand there and say, well, it's in parentheses. [00:19:21] Speaker 01: So what are the contextual reasons related to this statute? [00:19:26] Speaker 01: Or maybe give me policy reasons. [00:19:28] Speaker 01: Give me any reason at all. [00:19:30] Speaker 01: Why should this be treated as definitional? [00:19:34] Speaker 00: Your Honor, as a matter of policy, this whole reg, subsections A, B, and C, are designed to give the veteran the benefit of the doubt. [00:19:45] Speaker 00: And unfortunately for the secretary, there has to be a line. [00:19:49] Speaker 00: In other words, when you're looking at ratings or if you're evaluating the medical conditions or disabilities that veterans suffer, there has to be some way to evaluate those to make sure [00:20:01] Speaker 00: that the rating assigned for the condition meets the criteria. [00:20:06] Speaker 00: I think, as Judge Stark pointed out, that when somebody is what they used to call convalescing, period, and you assigned a rating, to have that endure in perpetuity might be unfair to the taxpayer or might not accurately reflect [00:20:22] Speaker 00: the veteran's overall prognosis or ability to continue. [00:20:27] Speaker 00: In this particular regulation, the entire regulation gives context to the idea that five years is a fair threshold to apply heightened protections for a veteran. [00:20:38] Speaker 01: So when you mentioned convalescing, and Judge Start, just to be clear, beyond the five-year period, it's not like once you hit the five-year period, you are guaranteed these benefits for life. [00:20:49] Speaker 01: If you are, in fact, convalescing and the government can reevaluate, it's just a higher burden on the government to take the benefits away at that point. [00:20:58] Speaker 01: Is that correct? [00:20:59] Speaker 00: That's correct, Your Honor. [00:21:00] Speaker 00: The medical information, the nature and quality of the exams that are discussed in subsection A is a heightened standard than if a particular veteran doesn't meet what I'd urge you to consider to be a five-year threshold. [00:21:15] Speaker 00: Then those heightened standards, those heightened medical considerations in evaluating a veteran's disability will kick in. [00:21:24] Speaker 00: However, a veteran will still have the due process rights associated with notice and meaningful opportunity to be heard if the Department of Veterans Affairs does consider reducing a veteran's rating. [00:21:36] Speaker 01: Respectfully, I don't think you've still articulated for me a policy reason that would urge me to treat the five-year period as definitional. [00:21:46] Speaker 01: You've just talked about why we don't want veterans to continue to get disability benefits if they aren't truly entitled to them. [00:21:54] Speaker 01: So therefore, we don't want the government to have to apply a heightened standard. [00:21:58] Speaker 01: But why does that mean the five-year period was meant to be definitional? [00:22:03] Speaker 01: Under, for example, canons of statutory or regulatory interpretation, [00:22:08] Speaker 01: you want to try not to construe language as superfluous. [00:22:12] Speaker 01: And one of the arguments I understand Mr. Carpenter to have made is that if the statute says continued for long periods at the same level, in parentheses five years or more, [00:22:22] Speaker 01: Why would the words long period need to be in there if five years or more was definitional? [00:22:28] Speaker 01: Why wouldn't the statute or regulation in this case just say continued for five years or more? [00:22:33] Speaker 01: That would have been a much crisper, clearer statement. [00:22:38] Speaker 01: And in fact, the construction you would like me to give this statute or regulation creates superfluous language in it. [00:22:45] Speaker 01: Because what meaning does long period have? [00:22:47] Speaker 01: Why does that language need to be there? [00:22:52] Speaker 00: Your Honor, I can't speak exactly to how it evolved, except for to point to the history in the brief that the regulation evolved over time, and they used different language to describe it. [00:23:01] Speaker 01: And in the- Do you agree that the words long periods are superfluous because of the five years or more under your construction? [00:23:09] Speaker 00: Your Honor, under my construction, I think that they go together in the entire structure of the regulation. [00:23:16] Speaker 01: Well, what does long periods, what does continued for a long period add [00:23:21] Speaker 01: if five years or more is, in fact, definitional. [00:23:25] Speaker 00: I understand your concern. [00:23:26] Speaker 00: And I can see that a more elegant draft might have just included one or the other. [00:23:32] Speaker 00: But I believe that having the parentheticals, rather, I shouldn't say I believe. [00:23:38] Speaker 00: I suggest or I urge you that the parentheticals provide a threshold for applying what is similar to an evidentiary rule on behalf of veterans. [00:23:48] Speaker 04: Isn't the best policy reason precision? [00:23:52] Speaker 04: Precision benefits everyone. [00:23:55] Speaker 04: And the precise number five is specific, whereas the previous language is more general. [00:24:04] Speaker 04: And so the specific language governs. [00:24:07] Speaker 00: Yes, Your Honor. [00:24:08] Speaker 00: And I would point in the Singleton case, which is the Court of Appeals for the Federal Circuit case, there is language in that case where this very court discussed long periods and a parenthetical provided i.e. [00:24:24] Speaker 00: five years or more in analyzing a veteran's disability case. [00:24:29] Speaker 00: So while I can't, Your Honor, specifically tell you the actual intent of providing an extra or a parenthetical at the end. [00:24:37] Speaker 01: But IE is the perfect example of the context that the government has historically argued should inform whether something is definitional or a guideline. [00:24:46] Speaker 01: Judge Laurie suggested earlier that the parenthetical didn't say EG. [00:24:51] Speaker 01: That's absolutely true. [00:24:52] Speaker 01: It doesn't. [00:24:52] Speaker 01: Had it said EG, that would have helped Mr. Carpenter a lot. [00:24:56] Speaker 01: It also doesn't say IE. [00:24:58] Speaker 01: Like you just said, which would be okay. [00:25:01] Speaker 01: I don't remember what the Latin word that is, but it's like the thing itself, right? [00:25:04] Speaker 01: Something like that. [00:25:05] Speaker 01: It is. [00:25:05] Speaker 01: I think it is. [00:25:07] Speaker 01: What is it? [00:25:09] Speaker 01: It asked. [00:25:09] Speaker 01: There we go. [00:25:10] Speaker 01: So, uh, if it said I E that would help you tremendously. [00:25:14] Speaker 01: That would be the context that makes it clear to us. [00:25:17] Speaker 01: It's definitional. [00:25:18] Speaker 01: It does neither of those things. [00:25:21] Speaker 01: So what about the second sentence? [00:25:22] Speaker 01: What about is there anything in the language they do not apply to disabilities which have become stabilized and are likely to improve? [00:25:31] Speaker 01: How does that sentence impact the analysis of when C applies? [00:25:37] Speaker 01: Is that sentence likewise irrelevant because it's only five years or more? [00:25:42] Speaker 01: Or does that sentence add sort of in a totality of the circumstances way more [00:25:48] Speaker 01: for the VA to have to contemplate in assessing whether the disability is likely to improve. [00:25:54] Speaker 01: Is there more to think about than just five years or more in light of that next sentence, like because you also have to think about whether it's stabilized, whether it's likely to improve? [00:26:04] Speaker 01: What does that second sentence [00:26:06] Speaker 01: I think, technically, third sentence. [00:26:08] Speaker 01: What does the third sentence do to Part C at all, in your argument? [00:26:13] Speaker 00: It provides further context or explanation as the department concludes or looks at reducing a veteran's disability rating. [00:26:25] Speaker 01: I guess here, OK, well, my question to you would be, for example, suppose that something had been in place for six years, a rating. [00:26:36] Speaker 01: Would the government look to stabilized or likely to improve to nonetheless rule out the application of C, or is five years or more just a black letter rule? [00:26:50] Speaker 01: And if it's five years or more, they get heightened scrutiny. [00:26:53] Speaker 01: If it's five years or less, they don't. [00:26:55] Speaker 01: What does that next sentence do to how the government will analyze C? [00:27:01] Speaker 00: Your Honor, I see my time's expired. [00:27:03] Speaker 00: May I answer your question? [00:27:04] Speaker 00: Please. [00:27:05] Speaker 00: It provides extra instruction in a situation where a disabled veteran may exceed the five-year mark, and there may be a change in their rating, which is related to a change in their medical condition. [00:27:21] Speaker 01: So does that mean it's your view that even if the veteran meets the five-year limit, that next sentence, they do not apply to disabilities which have not become stabilized, may prevent them from getting the heightened scrutiny nonetheless? [00:27:38] Speaker 00: No, Your Honor. [00:27:39] Speaker 00: They still may. [00:27:40] Speaker 00: It remains within the discretion. [00:27:42] Speaker 02: It becomes discretionary? [00:27:46] Speaker 02: Even I think the question or the hypothetical is, you have a disability rating for six years, which is five years or more, correct? [00:27:57] Speaker 02: Yes, sir. [00:27:59] Speaker 02: OK. [00:27:59] Speaker 02: But the disability has not become stabilized, nonetheless. [00:28:07] Speaker 02: Even though it's been six years, it's been a long period of time, the disability itself has not become stabilized. [00:28:13] Speaker 02: It's still likely to improve. [00:28:15] Speaker 02: Do I get the protections of the procedures in A and B in that circumstance, or do I not? [00:28:23] Speaker 00: You do. [00:28:24] Speaker 02: Because the five years is the cutoff, regardless of what the second sentence says about the disability. [00:28:30] Speaker 00: Yes. [00:28:31] Speaker 00: And if I confuse the court, I'm talking about the medical discretion, the nature and quality of the medical personnel's judgment in evaluating the condition. [00:28:40] Speaker 01: So if I'm not mistaken, then what you're saying is [00:28:46] Speaker 01: If we interpret the long period as five years or more, that is absolute. [00:28:51] Speaker 01: It decides the question. [00:28:53] Speaker 01: And the entire next sentence about they do not apply to disabilities which have not become stabilized and are likely to improve is entirely superfluous. [00:29:03] Speaker 01: It has absolutely no impact on whether the heightened scrutiny applies. [00:29:07] Speaker 01: That five years is it, and all the other language in C is irrelevant. [00:29:13] Speaker 01: Is that what you're arguing? [00:29:15] Speaker 00: I think so, yes, your honor. [00:29:19] Speaker 01: OK, thank you very much. [00:29:20] Speaker 01: Mr. Carpenter, you have some more time. [00:29:26] Speaker 03: May I please record? [00:29:26] Speaker 03: I don't believe I have anything to add. [00:29:29] Speaker 01: Excellent choice. [00:29:31] Speaker 01: All right, thank you, Mr. Carpenter. [00:29:32] Speaker 01: Thank you, Ms. [00:29:33] Speaker 01: Pullman. [00:29:33] Speaker 03: Thank you, nurse.