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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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Good morning, everyone.

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The first argued case this morning is Appeal Number 21-1367, Slaughter Against McDonough.

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Mr. Duhakos.

[00:00:29] Speaker 01:
Thank you, Your Honor, and good morning.

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May it please the court.

[00:00:33] Speaker 01:
First, I want to thank this court for the opportunity to present Mr. Slaughter's appeal.

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We have before us an appeal where the Veterans Court passed on a legal issue presented to them asking to define a specific regulation and ruled instead that any assumed error is harmless.

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Our argument today will focus primarily on why the Veterans Court's harmless error analysis was legally deficient.

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In time permitting, or as this court finds necessary,

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I will explain the importance of the board's binding favorable findings of fact and how these guide the rest of the appeal and then how nerves are rated to include the proper interpretation of the note in section 4.124A that directs how to rate peripheral nerve injuries in the upper extremities.

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To start, I want to emphasize to this court that the proper interpretation of the rating criteria for the peripheral nerves

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and the specific note.

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Council, this is Judge Rayno.

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Aren't you at bottom asking us to make a disability finding based on an injury that's not service connected?

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And the law's pretty clear that that would not be possible.

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Disability benefits are awarded in situations where service connection is shown, and yet one of the

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clearly is not service connected.

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How do you respond to that?

[00:02:00] Speaker 01:
Your Honor, thank you.

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We are not asking to service connect anything that is not, or rather compensate anything that is not entitled to service connection.

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And as I just mentioned, the board's favorable findings of fact support this conclusion.

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In referring to

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to page 38 of the appendix, the board made two crucial findings of fact that are favorable to Mr. Slaughter.

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First, they noted that, and I'm quoting here, when it is not possible to separate the effects of a service-connected disability from a non-service-connected condition, such signs and symptoms must be attributed to the service-connected disability.

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So the board did find a non-service connected disability, correct?

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Or injury?

[00:02:53] Speaker 01:
Your Honor, yes, but it's a little more nuanced than that.

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And you're looking for disability benefits based on that non-service connected injury.

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Either apart, standalone, which I don't think is a case here, but in combination,

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with another injury, you're looking for increased disability benefits.

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That is correct, Your Honor, and the basis for that.

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How can we award, or how can the law, under the law, how can you obtain an increase in disability benefits based on a non-service connected injury?

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There's two parts to the answer to that question, Your Honor.

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Number one is we have to begin in every case with 5107B, which directs that when the positive and negative evidence are in approximate balance, the benefit of the doubt is given to the veteran.

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In this case, the board was reviewing the factual matter as to the extent of the disability in Mr. Slaughter's upper extremity that is caused by his service-connected injury.

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The board determined that there is overlapping disability and impairments to such an extent that it cannot differentiate which one belongs to his service-connected injury and a non-service-connected disease or injury.

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However, the government says in its brief that you're not asking for what they call a combined injury rating, which takes us back to Judge Raina's question.

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If you're not asking for a combined rating, isn't that more complicated?

[00:04:51] Speaker 01:
Your Honor, I'm not sure I quite understand the question.

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Are you referring to combined

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disability ratings under 4.25 or the combined rating that is underneath the diagnostic code that we're looking at here?

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No, I don't know the answer to that and the government didn't answer it either.

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All that they did and said in their brief

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was that we shouldn't worry about combined injury that is essentially taking the veteran as he was with the service-connected injury and then putting it together with what may have happened later in life.

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But they made the planned statement that you are not asking for what they called, and these are their words, a combined injury rating.

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I'll have time to explain it if it's not clear to you.

[00:05:49] Speaker 01:
Yes, thank you, Your Honor.

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And I assume that that statement, and we responded to it in our reply brief, that that was, well, actually, I didn't actually address that specific point because the nature of the board's finding of fact, from a legal perspective, requires the VA to compensate for all disability

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in both of those NURs because we cannot differentiate which is caused by which NUR.

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And that was the 40%.

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Was it not?

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Was that applying that standard that the board applied that standard that said the regional office was incorrect?

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In part, Your Honor, but what the board did

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And those two paragraphs on page 38 are really the heart of what this appeal is about.

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Because what the board first did in that first full paragraph is to make a legal ruling that a rating for a group, a peripheral group, I'm sorry, a ridiculous group rating is unavailable because only the ulnar nerve is service connected.

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Now normally that's a correct statement of law, but when you have disability that exists apart from the ulnar nerve,

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And the board made a finding prior to that that it must be compensable.

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And when they say in our applying mid-liner and saying that it must be attributed to the service-connected condition, or disability rather, what they're saying in essence is that all the disability in that part of the arm, which is as we noted in our briefing and as the diagnostic codes indicate, is primarily the wrist and hand, should be compensated to the extent

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under 4.120 and 4.124A, the introductory part, should be rated and compensated as if it's all related to service.

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And that is... I'm sorry, Judge Raina.

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This is Judge Cunningham.

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Shouldn't the board differentiate between service-connected and non-service-connected injuries and rate according to the service-connected injury?

[00:08:00] Speaker 01:
Yes, Your Honor.

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And again, that is...

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That is what the board attempted to do, but it made a finding of fact applying the benefit of the Dow under 5107B that we can't tell which disability is caused by which one.

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Therefore, the veteran getting the benefit of the Dow under the VA's duty to maximize in benefits under 38 CFR 3.103A and the general veteran friendly scheme that Congress envisioned

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the board made this finding that all of it's going to be compensated.

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Not that it's necessarily service-connected, but that it is part of the disability for which he will be compensated under 1110.

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Counselor, I find that the board's finding, this is the one that's really relevant to me, and that's, quote, the veteran's median nerve symptoms cannot be distinguished from the service-connected ulnar nerve entrapment.

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I think your argument would have merit if we were talking about combination of injuries that are service-connected.

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But here, we have one injury that's not service-connected, and you still haven't shown to me anyway.

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the law that would support your case.

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And we just disregard, and the VA just disregards that they're compensating an injury that's not service connected.

[00:09:34] Speaker 01:
Your Honor, the legal authority for that is in the very next sentence where the board, again, citing 3.102, which is the regulation of benefit of the doubt,

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which talks about 5107B incidentally codified 3.102 which has been in existence for many decades prior to that.

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And the Veterans Court ruling in Mitleider which ruled essentially that statement where you can't differentiate which non-service connected symptoms are

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between those and the service-connected, all of them are deemed service-connected, for lack of a better word, or really to explain it in a better way.

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They're considered, they are compensable because we can't figure it out.

[00:10:26] Speaker 01:
There's so much overlap that we're just going to assume that all of it is service-connected, and that's what Mitleider says.

[00:10:33] Speaker 03:
Isn't that precisely what the board did in reversing the RO?

[00:10:42] Speaker 01:
Not entirely, Your Honor.

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They did offer a higher rating, but they failed to consider entitlement under the other diagnostic code, 518512, that would entitle him to a 50% rating should the extent of the disability warrant a ridiculous group rating.

[00:11:03] Speaker 01:
And that's where the error is, and that's where the prejudice rests, in that they must compensate under MID LIGR,

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And in order to compensate, because there's more than one nerve involved now, or at least there's disability from more than one nerve, a radicular group rating is available.

[00:11:22] Speaker 01:
And the board in their legal ruling said it's not available at all, and so we can only rate under the ONAR nerve, which is, for the severe rating, is only 40%.

[00:11:33] Speaker 04:
Does any regulation provide for treating non-service-connected nerve injuries as though they were service-connected?

[00:11:45] Speaker 01:
I don't believe directly on that point, Your Honor.

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I will, in between, I will try to answer that question for you in my rebuttal.

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But I would, again, point you to Mitleider.

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And two points on that.

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One, the board is obligated under 7104A to apply the law that is binding on them, which includes veterans' courts to the secretary.

[00:12:09] Speaker 01:
I don't think challenge this particular legal ruling.

[00:12:13] Speaker 01:
And again, because there's a finding of fact by the board that the disability from the median nerve shall be attributed to the service-connected disability, I do believe that that issue is not reviewable at this stage of this, at the stage where we are now before this court.

[00:12:40] Speaker 03:
Okay.

[00:12:41] Speaker 03:
Anything else you need to tell us now or shall we hear from the government?

[00:12:46] Speaker 01:
I will sit down now, Your Honor, and I'll save the remainder for my rebook.

[00:12:51] Speaker 03:
Okay.

[00:12:52] Speaker 03:
Good.

[00:12:52] Speaker 03:
Thank you.

[00:12:54] Speaker 03:
Ms.

[00:12:54] Speaker 03:
Kristiniak.

[00:12:56] Speaker 00:
Yes.

[00:12:56] Speaker 00:
Good morning, Your Honor.

[00:12:57] Speaker 00:
Thank you.

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May it please the Court.

[00:13:00] Speaker 00:
I guess, jumping into what Mr. DeJokes was arguing, the legal issue here, to the extent the court even determines that it has jurisdiction over it, because as we argued in our brief under 38 U.S.C.

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7292D2, this really is the application of law or regulation as applied to the facts of a particular case.

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And here, Mr. Slaughter is attempting to create a legal issue where one really does not exist.

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There's no question, as this court's questions this morning have contemplated,

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that a non-service-connected injury by virtue of sharing some indistinguishable symptoms with a service-connected injury itself is then converted into a service-connected injury.

[00:13:40] Speaker 00:
The statutes are very clear on this, 38 USC 1110, the basic entitlement statute says that the disability, the diagnostic codes are for diseases or injuries encountered as a result or incident to military service.

[00:13:55] Speaker 03:
Is there an issue here?

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where the board said they couldn't distinguish which aspects were service connected and which weren't.

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They're the nerves of the arm.

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And therefore, they essentially awarded their disability rating at the higher rating.

[00:14:22] Speaker 03:
And are you saying that's wrong?

[00:14:26] Speaker 00:
No, Your Honor, we are not.

[00:14:28] Speaker 00:
MIT leader stands for the proposition that when in an instance like this where you have the ulnar nerve, which is the ring finger and the pinky finger, and the median nerve, which is the middle finger and the pointer finger, there are symptoms that are somewhat indistinguishable between them.

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MIT leader stands for the proposition that the Veterans Court gives the veteran the benefit of the doubt, essentially, and attributes all of those indistinguishable symptoms

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to service connection.

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What the board did not do is say that as a matter of law, there would never be available a combined nerve injury rating in the instance of a median and ulnar nerve injury.

[00:15:03] Speaker 00:
What they said was, I'm on appendix page 38, rating the veteran's median nerve symptoms under diagnostic codes 8511, 8512, or 8515 is not appropriate because only his ulnar nerve is service connected.

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That is a solid legal conclusion that is firmly based in the statute and the entire statutory framework that the Veterans Administration works under to award combat veterans with disability entitlements.

[00:15:35] Speaker 00:
And the board never, again, never made this determination and Mr. Slaughter's brief repeatedly say that the board made a factual determination that he was entitled to compensation for both disabilities.

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That is not what the board found.

[00:15:48] Speaker 00:
Again, the board found that the signs and symptoms must be attributed to the service-connected disability, but it does not follow, and Helen's counsel was not able to cite any regulation or case law for the proposition that that served somehow to convert that non-service-connected injury into a service-connected injury.

[00:16:05] Speaker 03:
Well, you don't have to.

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I mean, this is really where the argument seems to go off on a tangent.

[00:16:12] Speaker 03:
We have a decision of the board, affirmed by the Veterans Court, saying you don't have to, if in fact they can't be distinguished or distinguished with absolute medical confidence, that you give the veteran the benefit of the doubt.

[00:16:31] Speaker 03:
So why it seems to me as if you're arguing against that.

[00:16:37] Speaker 00:
Not at all, Your Honor.

[00:16:38] Speaker 00:
And again, perhaps a look at the Langdon decision which this court released just last year might be instructive because in that instance there were a service-connected injury and a non-service-connected injury both to the spinal column.

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In that circumstance, this court affirmed the veteran court's determination that because there was not a separate diagnostic code for just the thoracic or just the lumbar spinal column,

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that the board must rate those under the combined spinal column diagnostic code.

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And that was because the Veterans Administration even had changed those regulations back in 2003.

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It prior had two different DCs for the two different spinal columns and found that because some of the manifestations of symptoms from those conditions were very difficult to distinguish, they got rid of those separate diagnostic codes and made it just one for the spinal column.

[00:17:27] Speaker 00:
In that instance, it was appropriate for the non-service-connected injury

[00:17:30] Speaker 00:
to be rated underneath that because the only available diagnostic code was the one that just related to the full final column.

[00:17:37] Speaker 00:
That is not the case here.

[00:17:38] Speaker 00:
As the board noted in its findings, there is a specific diagnostic code just for an ulnar nerve.

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And so notwithstanding the fact that under Mit Leader, the symptoms that were indistinguishable between the service-connected and the non-service-connected injuries were attributed for the purposes of determining the severity of the disability to service connection,

[00:17:59] Speaker 00:
Because there was an individual stand-alone diagnostic code just for neuropathy of the ulnar nerve, it was not appropriate to rate him under the other diagnostic code.

[00:18:13] Speaker 03:
Are you saying that if someone has an injury or illness sufficiently rare that it didn't get under the table and doesn't have a diagnostic code that it can't be considered?

[00:18:30] Speaker 00:
Not at all, Your Honor, no, but the Secretary's argument is rather that the combined diagnostic code for the combined injury, the board made a factual finding that that was not appropriate under these circumstances because there is a standalone diagnostic code for neuropathy of the ulnar nerve and paralysis.

[00:18:51] Speaker 00:
That is not to say a cell with many circumstances where there are

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various symptoms or diagnoses that do not necessarily fit into the bucket of a specific diagnostic code.

[00:19:03] Speaker 00:
And in that circumstance, that's again, fact finding that is reserved to the board, but in that circumstance, the board, you know, might select from one or another diagnostic code.

[00:19:13] Speaker 00:
Here again, they considered the possibility of rating him under 8512, but determined that it was, quote, not appropriate to do so because there is a standalone diagnostic code for just the ulnar nerve,

[00:19:23] Speaker 00:
and only the ulnar nerve is a service-connected injury.

[00:19:32] Speaker 02:
If the symptoms are indistinguishable, as we know in this case, then how does the VA ever base its disability ratings for the service-connected?

[00:19:43] Speaker 02:
Doesn't it plunge it into just guesswork?

[00:19:48] Speaker 00:
To a certain extent, Your Honor, it does, but that's where the presumption of

[00:19:53] Speaker 02:
So the concern that we not extend benefits or that benefits are not extended based on a non-service injury, it can also be the case that there are injuries or symptoms that are related to the service-connected injury that are not compensated if we affirm.

[00:20:26] Speaker 00:
I don't believe that's true your honor because again under mid leader the board took all of those symptoms which they could not distinguish between and assume for the purposes of selecting the severity of the disability that they were all service connected.

[00:20:40] Speaker 00:
The three different medical examinations rated Mr. Fodder at a 10% disability rate, and the board increased that up to 40% based on this MIT leader analysis that even though inevitably, presumably some amount of the symptoms are not related to the actual service-connected injury, because they're indistinguishable under MIT leader, those all need to be attributed to the service-connected industry injury, excuse me, in order to, again, give the veteran the benefit of the doubt and to maximize

[00:21:08] Speaker 00:
the disability compensation that he's entitled to.

[00:21:11] Speaker 00:
Again, it does not follow that by virtue of doing that, his non-service-connected injury is then converted into a service-connected injury for the purposes of actually which diagnostic code will be selected by the board as appropriate in this circumstance.

[00:21:28] Speaker 02:
Okay, thanks.

[00:21:30] Speaker 04:
Does merely considering a rating under DC 8512 discharge the board's duty under the DC 8719 note?

[00:21:41] Speaker 00:
So the note at DC 8719 relates to combined nerve injuries.

[00:21:46] Speaker 00:
And again, because underneath all of the schedules and diagnostic codes, we are only talking about service-connected injuries in that set.

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38 CFR 4.1 makes it clear that the following tables relate to diseases or injuries encountered as a result of incidents to military service.

[00:22:03] Speaker 00:
So the government's position is that a combined nerve injury under the note relates to two different nerve injuries or a nerve injury that relates to multiple nerves, but in any instance, both of those are service-connected.

[00:22:17] Speaker 00:
It's not a circumstance where one is not service-connected and another is.

[00:22:21] Speaker 00:
Notwithstanding that, again, the board did analyze and determine that it was not appropriate to rate under 8512 because only the ulnar nerve is service-connected.

[00:22:31] Speaker 00:
And we do believe that that was a sufficient and acceptable fact-finding for the board to make because, again, it's not an outstanding question of law as to whether or not the mid-leader analysis of the indistinguishable symptoms served to convert that median nerve injury into a service-connected one.

[00:22:50] Speaker 03:
I think the board recognized that it wasn't quite as clear cut as you say as to which nerve was affected.

[00:23:00] Speaker 03:
After all, here are the two major nerves in the same arm affecting different digits of the same hand.

[00:23:09] Speaker 03:
And to say that they're totally unrelated is totally illogical.

[00:23:18] Speaker 03:
it does seem as if the board recognized that quite clearly.

[00:23:23] Speaker 03:
And they did provide a certain amount of more than flexibility by saying you put them together.

[00:23:32] Speaker 03:
And the vigor of the position that at least I think you're presenting doesn't seem to fit with that.

[00:23:46] Speaker 00:
Your Honor, we're not arguing that the board's decision was improper in any way.

[00:23:52] Speaker 00:
We think that they made a factual determination, again, under mid-leader, to take all of the symptoms, those that might be attributable to, excuse me, the median nerve and those that might be attributable to the ulnar nerve, for the purposes of determining the amount of severity of the

[00:24:09] Speaker 00:
actual disability attributed them all as a service connection.

[00:24:12] Speaker 00:
And the secretary does not contest that determination by the board.

[00:24:16] Speaker 00:
We think that that is proper and inconsistent with the regulations and the case law that the board was relying on.

[00:24:23] Speaker 00:
So we definitely do not disagree with that portion of the secretary's statement.

[00:24:27] Speaker 00:
I guess the board's, excuse me, determination.

[00:24:32] Speaker 00:
Our only argument is that Mr. Slaughter is, again, attempting to try and tease the MET leader

[00:24:38] Speaker 00:
finding out into saying that there was a factual determination that he's entitled to be compensated for the disability of the median nerve.

[00:24:46] Speaker 00:
And that is not what the law provides for.

[00:24:51] Speaker 00:
Again, should the indistinguishable symptoms for the purposes of determining how severe the disability is, all be attributed to service connection.

[00:24:59] Speaker 00:
Yes, that's what the board did and that's what the leader says that the agency should do.

[00:25:05] Speaker 00:
Again, it just does not follow that that then turns the median nerve into a service-connected injury.

[00:25:13] Speaker 02:
So Mr. Slaughter received a disability rating based on the totality of his symptoms, is that correct?

[00:25:21] Speaker 00:
Yes.

[00:25:22] Speaker 00:
So the board, again, he received a 10% disability rating from three different veterans agency examinations.

[00:25:29] Speaker 00:
The board increased that to 40%, having looked at the indistinguishable symptoms between the median and ulnar nerve.

[00:25:37] Speaker 00:
They assumed that all of those were attributable to the ulnar nerve and rated him based on that.

[00:25:43] Speaker 00:
And so he was rated as severe incomplete paralysis of the ulnar nerve under 8516.

[00:25:51] Speaker 03:
Well, that may not be quite precise in terms of what they assumed.

[00:25:56] Speaker 03:
They didn't have to assume that it was all due to the elder nerve.

[00:26:01] Speaker 03:
They said it was indistinguishable.

[00:26:04] Speaker 00:
Precisely, Your Honor.

[00:26:06] Speaker 00:
And we only meant that as a matter of the actual, when it comes to the board to make its choice among diagnostic codes,

[00:26:12] Speaker 00:
that imagine a bucket of symptoms and we don't know which injury they belong to, they move that whole bucket over to the service connection side and they assume that all of the symptoms are attributable to service or connection.

[00:26:26] Speaker 00:
And that is consistent with the statutory directive that the Veterans Agency give the benefit of the doubt to the veteran and seek to compensate as fully as possible.

[00:26:37] Speaker 00:
They can for any disability,

[00:26:41] Speaker 00:
occurred in the line of service.

[00:26:43] Speaker 00:
And so again, even though inevitably presumably some amount of those symptoms are due to the median nerve injury as opposed to the ulnar nerve injury, the effect of Mint Leader is that the board assumes that all of those are attached to the service-connected injury and then rates accordingly.

[00:27:00] Speaker 00:
And again, the secretary does not contest that legal framework or that finding by the board.

[00:27:04] Speaker 00:
We think that that was proper in accordance with both regulation and

[00:27:08] Speaker 00:
regulation and the applicable precedent.

[00:27:13] Speaker 00:
I would like to just briefly touch on the prejudicial error argument that a claimant is making.

[00:27:19] Speaker 00:
A claimant is essentially arguing that there should be a per se prejudicial error analysis that simply by virtue of saying that he could have been rated under 8512, that that's enough to establish prejudice and that he doesn't actually need to go further

[00:27:37] Speaker 00:
and make any sort of factual-based argument based on the record as to what the actual effect of that prejudice would have been.

[00:27:45] Speaker 00:
As I'm sure the court is aware, that would be directly in contrast to the Supreme Court's decision in Shinseki versus Sanders, which explicitly rejected just that sort of per se prejudice analysis as contrary to the statutory directive at 38 USC 7261b2 that the Veterans Court must take due account of the rule of prejudicial error.

[00:28:06] Speaker 00:
And as this court confirmed in Simmons v. Wilkie, a decision that came out in 2020, the Supreme Court's holding about the per se prejudicial error was not limited.

[00:28:18] Speaker 00:
If I may briefly finish my thoughts, not limited just to notice, but rather was limited to all, was not limited just to notice, but was expanded to all sorts of per se prejudicial errors.

[00:28:30] Speaker 00:
And so we respectfully requested the court either

[00:28:33] Speaker 00:
uh, finds that it does not hold jurisdiction over this matter because it is application of, uh, law to, uh, fact or, uh, in the alternative affirmative decision of the Veterans Court.

[00:28:43] Speaker 00:
Thank you.

[00:28:44] Speaker 04:
Okay.

[00:28:44] Speaker 04:
Any more questions?

[00:28:46] Speaker 04:
Yeah, I had one more question.

[00:28:48] Speaker 04:
Thank you.

[00:28:49] Speaker 04:
Certainly.

[00:28:50] Speaker 04:
Where the record makes clear that the two, uh, DCs provide for different ratings, does he actually have to make that argument in terms of addressing the, the prejudicial error point you were just discussing?

[00:29:01] Speaker 00:
Yes, we believe that under Inseki versus Sanders, he does.

[00:29:06] Speaker 00:
And that's the actual finding of the board, or excuse me, the veteran court's determination quoted language from Sanders that says, the party seeking reversal normally must explain why the erroneous error ruling caused harm by marshaling facts and evidence and explain how the error to which he or she points could have made any difference.

[00:29:23] Speaker 00:
Mr. Slaughter tries to tease us out and say that the Veterans Court was requiring him to absolutely prove that he would have absolutely received a higher rating, and that's not what the Veterans Court said.

[00:29:33] Speaker 00:
The Veterans Court found that there was simply, quote, no allegation, there was not any allegation of prejudice made at any point in time by Mr. Slaughter in all of the proceedings, and that that was essentially a deficient pleading, that he just failed as a matter of law to make any prejudicial error argument.

[00:29:48] Speaker 00:
And we believe that that is contrary to the requirements of standards, as well as, of course, decision Simmons versus Wilkie.

[00:29:55] Speaker 03:
Okay.

[00:29:55] Speaker 03:
Anything else?

[00:29:56] Speaker 03:
Judge Cunningham?

[00:29:57] Speaker 03:
Judge Rainer for government counsel?

[00:30:01] Speaker 02:
No, thank you.

[00:30:02] Speaker 03:
No, thank you.

[00:30:03] Speaker 03:
Okay.

[00:30:03] Speaker 03:
Thank you, Your Honor.

[00:30:04] Speaker 03:
All right.

[00:30:04] Speaker 03:
Thank you.

[00:30:05] Speaker 03:
Thank you, counsel.

[00:30:06] Speaker 03:
In that case, we will hear rebuttal from Mr. Dohakis.

[00:30:11] Speaker 01:
Thank you, Your Honor.

[00:30:12] Speaker 01:
I have several points.

[00:30:13] Speaker 01:
Judge Cunningham, I want to first

[00:30:15] Speaker 01:
respond back to your question earlier about a specific regulation, 4.21 talks about the application, the rating schedule, and I think that's as close as we get to a regulation which applies to the question that you had about how to rate non-service-connected disability.

[00:30:32] Speaker 01:
In Judge Cunningham... Proceed.

[00:30:37] Speaker 01:
Your last point, Judge Cunningham, about the difference in ratings, and I think that is an important point because

[00:30:44] Speaker 01:
In Tadlock, this court recently ruled that, and I'm quoting here, affirmance in the face of an error may be made by the Veterans Court only if the record already contains findings made previously by the VA that support the affirmance or the entire record makes evidence that the board could not have reached any other decision.

[00:31:03] Speaker 01:
And we're not asking for a per se rule in this instance that this error is always harmless, although it's difficult to see a situation

[00:31:13] Speaker 01:
where there are still facts to be determined by the board where we can ever find an error harmless.

[00:31:20] Speaker 01:
And going back to Tadlock, where additional findings of fact are necessary regarding matters open to debate, the proper action is to remand for the board to do so in the first instance.

[00:31:31] Speaker 01:
And that's especially true in a situation like this where as Judge Cunningham noted, there's a 50% rating available

[00:31:38] Speaker 01:
or a 40% and the board needs to determine the extent of the disability that is compensable and whether each of those diagnostic codes apply.

[00:31:50] Speaker 01:
And one other important point to understand is the difference between a disability versus an injury or a disease.

[00:31:57] Speaker 01:
The disability is the functional impairment that is caused by the injuries and so when the board

[00:32:05] Speaker 01:
attributed all of the signs and symptoms as they termed it, which if they were more precise, would have called those disabilities or impairments.

[00:32:14] Speaker 01:
When all of those impairments are attributed to the service-connected injury, we now must compensate for all of them under 1110.

[00:32:22] Speaker 01:
That's an affirmative directive by Congress to do so.

[00:32:27] Speaker 01:
And the rating criteria are simply guides to help the VA figure out how to rate them.

[00:32:32] Speaker 01:
They're not set in stone.

[00:32:34] Speaker 01:
They're guides.

[00:32:35] Speaker 01:
So when there's disability present in a larger part of the hand than is just compensated by the ONAR nerve, the board has an obligation to consider other diagnostic codes to account for those disabilities, that impairment, those signs and symptoms as the board calls them, and determine in the first instance whether the primary nerve is the correct compensation or the group rating.

[00:33:04] Speaker 02:
Councilor, how can that happen if there's already been a finding that it's indistinguishable?

[00:33:11] Speaker 02:
It seems to me you're arguing that this should be remanded in order for the board to make a decision that it's already made.

[00:33:19] Speaker 02:
It's already said we cannot distinguish the disabilities from the rating on the basis of service connection.

[00:33:30] Speaker 01:
Correct, Your Honor.

[00:33:32] Speaker 01:
Your Honor, that question has been answered.

[00:33:35] Speaker 01:
But the next question then is, and again, our hands are tied a bit here because the Veterans Court never made a ruling on the legal issue of what do we do in this situation.

[00:33:47] Speaker 02:
This next step argument that you're making is on the basis that you believe that it has to be this mandatory combination process.

[00:33:56] Speaker 02:
But I don't see anything in the law that makes it mandatory.

[00:34:02] Speaker 01:
Your Honor, I think reading the note and understanding how disability is compensated makes the analysis mandatory.

[00:34:11] Speaker 01:
The board, because there's disability in the entire hand that's subject to compensation and the ulnar nerve rating code only compensates for a portion of the hand, we have to, under 1110, again, compensate for all disability that is present.

[00:34:30] Speaker 01:
The impairments are what drives the focus and drives the analysis.

[00:34:33] Speaker 02:
Where's the law that supports that statement that you just made?

[00:34:37] Speaker 02:
You argued before the Veterans Court of Appeals that the plain meaning of 38 CFR Section 4.12 4A mandates that the board consider DC and then it goes on.

[00:34:52] Speaker 02:
I'm interested in you giving me the legal authority on the term mandates.

[00:34:59] Speaker 01:
Well, the mandate comes from two sources, your honor.

[00:35:02] Speaker 01:
One is 1110.

[00:35:03] Speaker 01:
Again, disability will, U.S.

[00:35:07] Speaker 01:
will pay compensation for all disability.

[00:35:11] Speaker 01:
And the board's finding that you can't separate which is service connected and which is not, essentially under MidLighter says that we're going to compensate that all.

[00:35:23] Speaker 01:
And incidentally, Mitleider explained that the secretary cited we're both dealing with general rating criteria for psychiatric or spine, and here we don't have a general criteria.

[00:35:33] Speaker 01:
I would ask that you view those as a distinguishing fact.

[00:35:38] Speaker 01:
But the second legal authority for the mandate is the plain meaning of the regulation, which again says that when there are combined nerve injuries,

[00:35:52] Speaker 01:
Again, this all goes back to the fact that the Veterans Court never addressed this legal issue and we don't really have anything other than what the plain meaning is.

[00:36:05] Speaker 01:
The combined injury is more than one nerve.

[00:36:08] Speaker 01:
Disability from more than one nerve is subject to compensation and under 1110, the U.S.

[00:36:14] Speaker 01:
will pay compensation for that disability.

[00:36:19] Speaker 01:
In order to properly do that, the board must then determine, does the ONAR nerve rating code properly compensate for all of that, or must we rate it under the nerve group rating in order to ensure, again, under 5107B 3.103A, where we try to maximize the benefits available, which one do we choose?

[00:36:41] Speaker 01:
And which one question is the one that we have to get an answer from the board first?

[00:36:47] Speaker 01:
And the Veterans Court just

[00:36:49] Speaker 01:
made that factual finding in violation of TADLOC and really is requiring Mr. Slaughter to ask the court to also violate TADLOC in 7261C.

[00:37:01] Speaker 03:
Okay, thank you.

[00:37:05] Speaker 03:
Any more questions for Mr. DeHakos?

[00:37:09] Speaker 03:
No.

[00:37:11] Speaker 03:
Okay, Jadrina, okay.

[00:37:15] Speaker 02:
I'm fine, thank you.

[00:37:16] Speaker 03:
All right.

[00:37:17] Speaker 03:
My thanks to both counsels.

[00:37:18] Speaker 03:
The case is taken under submission.