[00:00:00] Speaker 00:
The next case is Eugene Weber versus Secretary of Veterans Affairs 2021-2089.

[00:00:44] Speaker 00:
Mr. Niles, we're ready when you are.

[00:01:04] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:01:08] Speaker 01:
This appeal presents two issues, the first being

[00:01:13] Speaker 01:
why in VA's rating code for diabetes, the language, quote unquote, regulation of activities does not require a purpose being to control or treat the diabetes.

[00:01:28] Speaker 01:
And the second issue being why Mr. Weber's regulation of activities applies toward VA's rating criteria for diabetes instead of peripheral neuropathy.

[00:01:41] Speaker 01:
And I believe that it would be more useful for the court for me to focus on the second issue today.

[00:01:46] Speaker 01:
And so that's what I intend to do.

[00:01:47] Speaker 03:
Can I just ask you, and maybe this is related to what you were about to talk about, but my understanding is the CAVC affirmed the board and the basis was that he was already compensated for this regulation of activities under his PM rating.

[00:02:05] Speaker 03:
And therefore, it would be the double counting stuff, which I don't think anybody's disputing is not allowed.

[00:02:13] Speaker 03:
Can you tell us?

[00:02:14] Speaker 03:
I mean, you have to.

[00:02:16] Speaker 03:
You have to convince us that that was an incorrect conclusion, right?

[00:02:20] Speaker 03:
And so I'm not sure how your other sub-issues fit into that ultimate conclusion and what the basis is for dislodging that.

[00:02:31] Speaker 01:
And Your Honor, that is precisely what I intended to address with respect to the second issue here.

[00:02:37] Speaker 03:
I apologize.

[00:02:38] Speaker 01:
Oh, no, Your Honor.

[00:02:39] Speaker 01:
And it is very important.

[00:02:40] Speaker 01:
And so what start me going through the briefs is that at root the disagreement here is at what level of granularity this analysis has to run.

[00:02:52] Speaker 01:
And so at a 50,000 foot view, one would see that number one, Mr. Weber has diabetes.

[00:02:58] Speaker 01:
And number two, that diabetes has caused him to develop peripheral neuropathy.

[00:03:02] Speaker 01:
A 50,000 foot view, just the very base level diagnoses here.

[00:03:07] Speaker 01:
Zooming in a little closer, maybe to a 30,000 foot view, one would see that Mr. Weber has diabetes and then peripheral neuropathy of the femoral and sciatic nerves bilaterally.

[00:03:19] Speaker 01:
And that level of granularity is where the Veterans Court and the board ended their analysis.

[00:03:26] Speaker 01:
And so at appendix page 18, what the board stated was that given that Mr. Weber is separately rated for his peripheral neuropathy, the functional impairment caused thereby, which is to say categorically any and all functional impairment due to, again, broadly this peripheral neuropathy, is already contemplated in the 20% ratings assigned for each extremity.

[00:03:51] Speaker 01:
And so again, that 30,000 foot view.

[00:03:54] Speaker 01:
What Mr. Weber submits is that the law requires VA to go further, to get more granular in its analysis, more specific, to parse more finely.

[00:04:05] Speaker 01:
And this is seen, for example, in 38 CFR Section 425B, which contemplates even the single disease entity having these multiple manifestations, these multiple functional impairments, that VA then has to go in and rate separately and then combine those separate ratings.

[00:04:24] Speaker 01:
VA is due to maximize benefits also.

[00:04:27] Speaker 03:
So what is the error here in this case?

[00:04:30] Speaker 03:
It seems you're not challenging their conclusion.

[00:04:33] Speaker 03:
I mean, he was compensated for this regulation of activities limitation under the PN rating.

[00:04:40] Speaker 03:
I appreciate the 30,000 feet and the granularity and all of that, but I'm not sure it gets me to understanding

[00:04:48] Speaker 03:
what's where they aired.

[00:04:50] Speaker 03:
I mean, he's been compensated for this.

[00:04:54] Speaker 03:
We all agree that it would constitute improper pyramiding to be double compensated for this.

[00:05:01] Speaker 03:
So I appreciate all of your arguments, but I'm not sure where they get us to dislodging that conclusion.

[00:05:10] Speaker 01:
So Appendix Page 24 is part of this

[00:05:16] Speaker 01:
expert opinion by Dr. Anderson.

[00:05:18] Speaker 01:
And it speaks to the particular manifestations of peripheral neuropathy that Mr. Weber suffers, this prickling or burning sensation, pain, and numbness.

[00:05:31] Speaker 01:
And if that were it, then each one of those manifestations is contemplated by the peripheral neuropathy rating codes.

[00:05:40] Speaker 01:
And it goes to his overall assessment of peripheral neuropathy of the femoral and sciatic nerves as being moderate, the 20% rating bilaterally for those.

[00:05:51] Speaker 01:
And to use those manifestations over as, again, would be double counting.

[00:05:58] Speaker 01:
But in addition to that, and this goes back to the granularity, there is this doctor's instruction that because of the peripheral neuropathy,

[00:06:05] Speaker 01:
to avoid activities involving heights, involving climbing, involving balancing.

[00:06:11] Speaker 01:
And in Mr. Weber's view, that is different.

[00:06:14] Speaker 01:
And there is nothing in the peripheral neuropathy rating code that contemplates compensating the veteran for that doctor instructed avoidance of activities.

[00:06:23] Speaker 02:
So you have to go to the diabetes code.

[00:06:27] Speaker 01:
Yes, Your Honor.

[00:06:28] Speaker 02:
And you say that kicks up from 20 to, I guess, 40.

[00:06:32] Speaker 02:
because of the limitation of regulation of activities.

[00:06:37] Speaker 01:
Exactly, Your Honor.

[00:06:38] Speaker 02:
But that's when you run into the decision of the Veterans Court that regulation of activities is really addressed to things that you can't do because it would make the disease worse as opposed to things that you shouldn't do because you have the disease and you should avoid them.

[00:06:59] Speaker 02:
In other words,

[00:07:00] Speaker 02:
If you have night blindness, you shouldn't drive at night.

[00:07:05] Speaker 02:
But that's not because driving at night will make your night blindness worse.

[00:07:09] Speaker 02:
It'll get you into auto accidents.

[00:07:10] Speaker 02:
Isn't this into the second category?

[00:07:14] Speaker 02:
And isn't the court right in saying that what this language is addressed to is the first category, not the second?

[00:07:22] Speaker 01:
And so Mr. Weber's position is that the Veterans Court erred in this analysis.

[00:07:27] Speaker 01:
And this would be the other of the two major issues that this appeal presents, where he looks at this Diagnostic Code 7913, the VA's rating code for diabetes.

[00:07:40] Speaker 01:
And he sees regulation of activities in the context of, for a 40% rating, there's a requirement that there be a regulation of activities.

[00:07:52] Speaker 01:
Nothing in the language of the rating code requires that that go to treatment or control of the veteran's diabetes.

[00:08:01] Speaker 01:
And the Veterans Court decision on which the Veterans Court will act here, the Camacho case, speaks not to

[00:08:13] Speaker 01:
in avoidance of activities due to the veteran's own severity or what might happen in the case of worsening the veteran's own diabetes, but instead was an employer's restriction on driving a van due to others' safety.

[00:08:30] Speaker 01:
The employer was saying that if you are taking daily insulin injections, we're not going to let you drive patients to the hospital because we're worried you're going to crash and hurt other people.

[00:08:40] Speaker 01:
And so fundamentally, it is Mr. Weber's position that that case differs, is distinguishable, and that it renders the Veterans Court's analysis here unsound.

[00:08:56] Speaker 01:
I mentioned the language of the rating code here, the Diagnostic Rating Code, and how it says regulation of activities in this work required.

[00:09:06] Speaker 01:
This court's recent decision to Martinez-Boden, I think, also looks at sort of a staged rating set up, or successive ratings, where the lower ratings you have some requirements to get a higher rating if you need those plus more.

[00:09:25] Speaker 01:
In the rating code for diabetes, at the 20%, you have requiring two of these factors, daily insulin injections and restricted diet.

[00:09:37] Speaker 01:
At the 40% you have requiring three of these factors, adding this regulation activities and requiring on up.

[00:09:44] Speaker 01:
Looking at the 10% criteria, it is diabetes that is manageable as opposed to requiring something, but manageable by restricted diet alone.

[00:09:56] Speaker 01:
And so the difference in phraseology there between these

[00:10:01] Speaker 01:
different steps of ratings, of the rating criteria for diabetes, shows that if VA had intended to require something other than this broad requiring regulation of activities, where it had to have been regulation of activities to control or to treat diabetes, VA could have done that, and it did.

[00:10:23] Speaker 01:
And this is the reason why Mr. Wehmer believes that

[00:10:28] Speaker 01:
There is no requirement in this phrase, regulation of activities, that go toward treatment or control of the diabetes of the specific veteran.

[00:10:40] Speaker 01:
And Your Honors, that sums up these two issues.

[00:10:43] Speaker 01:
Unless Your Honors have any further questions, I would like to reserve a reminder of my time for rebuttal.

[00:10:49] Speaker 00:
Fine, no one ever loses points by not using up all their time.

[00:10:54] Speaker 00:
We'll save your time.

[00:10:57] Speaker 00:
Mr. Carhartt.

[00:11:27] Speaker 04:
May it please the court?

[00:11:29] Speaker 04:
The Veterans Court's decision should be affirmed.

[00:11:32] Speaker 04:
I'll begin with the arguments that my friend Mr. Niles was making about Section 4.14.

[00:11:39] Speaker 04:
Section 4.14 bars double compensation for the same manifestation.

[00:11:45] Speaker 04:
And the reasoning for the Veterans Court's application of section 4.14 here is evident when you consider the structure of the peripheral neuropathy regulation.

[00:11:57] Speaker 04:
So the diagnostic code relating to peripheral neuropathy comes from section 4.124A, which starts out with a prologue that says the conditions herein are compensated based upon in proportion to impairment.

[00:12:14] Speaker 04:
And each diagnostic code has a specific way of compensating impairment.

[00:12:19] Speaker 04:
In the case of peripheral neuropathy, it's done through the severity of the peripheral neuropathy.

[00:12:26] Speaker 04:
So in other words, severity is used as a proxy for impairment.

[00:12:32] Speaker 04:
It's used as a way of approximating impairment.

[00:12:35] Speaker 04:
So if you compensate severity, you are in principle compensating the impairment to result from that severity.

[00:12:42] Speaker 04:
And if you then compensate again the impairment after the severity has already been compensated, double compensation results.

[00:12:52] Speaker 04:
Now, I want to address Mr. Niles' point about granularity here and focus the court's attention if the court reaches the issue of how 4.14 specifically was applied to the facts here.

[00:13:08] Speaker 04:
I think it is helpful to look at page 24 of the appendix, which Mr. Niles cited.

[00:13:15] Speaker 04:
That is Dr. Anderson's letter that's the basis for the issue here.

[00:13:23] Speaker 04:
And Dr. Anderson's letter is based upon his review of the medical records of Mr. Weber.

[00:13:31] Speaker 04:
He didn't do a physical examination of Mr. Weber.

[00:13:35] Speaker 04:
Dr. Anderson starts in the peripheral neuropathy section of the letter discussing the VA examination's findings about Mr. Weber's symptoms.

[00:13:46] Speaker 04:
He then notes that the VA compensated those symptoms at a 20% rating after this VA examination.

[00:13:56] Speaker 04:
And then he proceeds to the question of his opinion, which essentially extrapolates from the VA examiner's findings that were compensated and identifies additional functional impairments that result.

[00:14:11] Speaker 04:
Now, the board and the Veterans Court both summarize this portion of the letter, noted that

[00:14:19] Speaker 04:
that Dr. Anderson's opinion was based upon this VA examination.

[00:14:25] Speaker 04:
So in that sense, the boards and the Veterans Court's findings were supported with adequate reasons and did address this issue at an adequate level of granularity.

[00:14:37] Speaker 04:
I'll also note that as we argue in our brief, the Veterans Court's decision here was supported by a factual conclusion that

[00:14:49] Speaker 04:
The only relationship at issue was the peripheral neuropathy and this doctor's recommendation.

[00:14:57] Speaker 04:
In other words, the doctor's recommendation resulted only from the peripheral neuropathy.

[00:15:02] Speaker 04:
So that's a causal, factual issue.

[00:15:05] Speaker 04:
Mr. Weber cites in his reply brief some authorities related to this issue.

[00:15:13] Speaker 04:
But in our view, those authorities emphasize the factual nature of the causal analysis that underlie this board's conclusion.

[00:15:21] Speaker 04:
In particular, he cites the VA general counsel's opinion that specifically makes the point that causation is a factual issue to be adjudicated by the examiner.

[00:15:32] Speaker 02:
Now, let me make sure that I understand.

[00:15:34] Speaker 02:
just what you were saying earlier.

[00:15:36] Speaker 02:
Are you suggesting that there is no showing that the peripheral neuropathy was related to the diabetes?

[00:15:43] Speaker 02:
No, that's not what we're suggesting, Your Honor.

[00:15:45] Speaker 02:
What we're suggesting is- That seems to be pretty well conceded, right?

[00:15:49] Speaker 04:
Absolutely.

[00:15:50] Speaker 04:
What we're saying is the relationship that's at issue is between the disease and the manifestation, and that's the relevant question.

[00:16:01] Speaker 04:
Just to make one more point on section 4.14, this court addressed the application of section 4.14 in Amberman.

[00:16:11] Speaker 04:
That was a decision that essentially concluded that the court didn't have jurisdiction to look into the factual underpinnings of the Veterans Court's 4.14 analysis there.

[00:16:27] Speaker 04:
And we do rely on the Amberman case in our brief.

[00:16:29] Speaker 03:
Your friend cited a recent case on his argument.

[00:16:34] Speaker 03:
Are you familiar with that one?

[00:16:36] Speaker 04:
I believe he cited a Veterans Court decision in his opening brief.

[00:16:40] Speaker 04:
I am familiar with the case that he cited.

[00:16:44] Speaker 04:
Undoubtedly, there are cases that present difficult issues.

[00:16:49] Speaker 04:
There's a lot of guidance that the VA has promulgated in this area describing when symptoms overlap.

[00:16:57] Speaker 04:
We're not saying there can never be review, especially at the Veterans Court level, of those sorts of factual issues.

[00:17:06] Speaker 04:
I believe what you're on is referring to is a Veterans Court decision that did look at those issues and considered whether the board's findings were clearly erroneous.

[00:17:18] Speaker 02:
Could you perhaps you?

[00:17:20] Speaker 02:
heading in this direction already.

[00:17:21] Speaker 02:
But could you address the question of whether the meaning of regulation of activities in context of the diabetes disability regulations?

[00:17:32] Speaker 04:
Absolutely, Your Honor.

[00:17:33] Speaker 04:
So our position on the meaning of regulation of activities

[00:17:36] Speaker 04:
is first that if you strip the phrase out of the statute and just look at it in isolation, it could conceivably mean different things, and that the court should therefore apply the traditional tools of statutory interpretation and regulatory interpretation set forth in Kaiser and traditionally applied under Chevron when considering statutes.

[00:17:59] Speaker 04:
We begin with the Nosotor Associates canon.

[00:18:05] Speaker 04:
We disagree with Mr. Weber's argument that that's a weak canon.

[00:18:10] Speaker 04:
We think that, as this court recognized, as a concurring opinion recognized in denying rehearing en banc in Kaiser, which Judge Prost wrote and Judge Lurie joined, the Nosotor Associates canon is a descriptive canon.

[00:18:29] Speaker 04:
that can come into play in stage one of Chevron as one of the tools of statutory interpretation that's used because it comports with the way the English language is traditionally understood.

[00:18:45] Speaker 04:
So we think the court should look at the other terms in the 40% category, the restricted diet and the insulin injections.

[00:18:54] Speaker 04:
consider regulation of activities in light of those two provisions.

[00:18:59] Speaker 04:
We also find support from the regulatory history of this provision.

[00:19:04] Speaker 04:
We cite the 1964 regulation

[00:19:08] Speaker 04:
In particular, one phrase from the 1964 regulation, which noted that full compensation of diabetes was reserved for cases where there's uncontrolled diabetes despite regulation of activities, restricted diet, and insulin.

[00:19:22] Speaker 04:
And we understand that to draw a connection between uncontrolled diabetes

[00:19:27] Speaker 04:
on one hand, and all the efforts that are being taken to try to address it, all the treatments that are being provided.

[00:19:33] Speaker 04:
So in other words, the uncontrolled diabetes persisted even though there were all these treatments undertaken.

[00:19:39] Speaker 04:
And we think our understanding of that phrase, as used in that 1964 regulation, makes more sense than understanding regulation of activities as a functional impairment.

[00:19:48] Speaker 04:
That wouldn't really logically flow in the same way.

[00:19:51] Speaker 04:
And finally, if the court still concludes that there's ambiguity, we think our reading is better.

[00:19:55] Speaker 04:
So the court doesn't need to resort to our deference.

[00:19:58] Speaker 04:
But our position is that the agency's interpretation of DC 7913 is entitled to deference under the factors set forth in Kaiser.

[00:20:14] Speaker 04:
That includes the fact that it was in the M211 manual, which this court has accorded our deference to in the past.

[00:20:23] Speaker 04:
It's well within the scope of the VA's subject matter expertise.

[00:20:29] Speaker 04:
And this is not a post hoc litigating position that's being taken.

[00:20:34] Speaker 04:
It's a position that is reflected in this manual that is binding on the adjudicators at the first level, not on the board.

[00:20:44] Speaker 04:
To address one issue that I believe was raised in the briefs,

[00:20:49] Speaker 04:
I would note that the board did note the agency's position here on what regulations activities meant.

[00:20:58] Speaker 04:
They didn't specifically cite the M21.1 manual, but they did cite a VA questionnaire, which gave the same explanation.

[00:21:07] Speaker 04:
So for all those reasons, even if the court finds ambiguity here, our position is that Kaiser and our deference is appropriate.

[00:21:20] Speaker 04:
If the court doesn't have any further questions, we ask that the court affirm the Veterans Court's decision.

[00:21:26] Speaker 00:
Thank you, counsel.

[00:21:28] Speaker 00:
Mr. Niles has some more time.

[00:21:49] Speaker 01:
Thank you, Your Honor.

[00:21:51] Speaker 01:
And just a brief rebuttal.

[00:21:55] Speaker 01:
I get my hackles up when I hear any shade of this is a question of fact or application of law to fact.

[00:22:03] Speaker 01:
Mr. Weber's arguments are purely of law.

[00:22:07] Speaker 01:
If the agency had found, had made this factual finding that the secretary alludes to now before this court, that Mr. Webber's regulation activities, this need to avoid straining the climbing, the heights, the balancing, was

[00:22:25] Speaker 01:
overlapping with or essentially the same as the prickling and burning sensation in his legs, the pain, the numbness, then there's no question that 414 would apply.

[00:22:40] Speaker 01:
We couldn't be using the regulation activities.

[00:22:43] Speaker 01:
both for peripheral neuropathy rating code, and then through note one of the diabetes rating code as a regulation of activities as part of the diapathetic process.

[00:22:53] Speaker 02:
If I could interrupt just for a second to clarify the point.

[00:22:57] Speaker 02:
I did not understand the government to be arguing that this was a case in which this court doesn't have jurisdiction because it's a factual matter.

[00:23:05] Speaker 02:
You started off by saying that you got your hackles up when you heard arguments about facts.

[00:23:11] Speaker 02:
I don't think that argument is being made here as such.

[00:23:13] Speaker 02:
Is that right?

[00:23:14] Speaker 01:
That is my understanding, too.

[00:23:16] Speaker 01:
I do get, I guess, a little jumpy about that.

[00:23:21] Speaker 02:
But I think we can all agree that that's not an argument.

[00:23:26] Speaker 01:
I will then respond.

[00:23:29] Speaker 01:
I also understand the government to really be inviting this court to look at the tension between, on the one hand, Kaiser hour deference, on the other hand, the pro-veteran canon that is unique to this sphere, being the sphere of veterans law.

[00:23:42] Speaker 01:
And Mr. Weber.

[00:23:45] Speaker 01:
does not believe that this is the case that the court needs to resolve.

[00:23:49] Speaker 01:
What essentially is one of likely the most important issues in all the veterans' laws, how that issue turns out, is the difference between essentially starting from an even playing field and interpreting the regulations, the statutes, versus when they get a deference to an uneven playing field where the appellant has to be going uphill versus just the opposite.

[00:24:13] Speaker 01:
But if this court does determine that the regulation is ambiguous and does consider the government's, what I understand to be first raised before this court or the court's argument, which is post hoc rationalization, even looking at the M21.1 provision that the government brought in before this court in appendix 30,

[00:24:36] Speaker 01:
It bears a date that comes after the date of the board decision that underlies this appeal.

[00:24:41] Speaker 01:
And so if the court were to get that far into the analysis, Mr. Weber does stand on his reply brief as to why the pro-veteran canon should apply either among the traditional canons at step one, or at the very least, what I'd refer to as a step 1.5, immediately after this court goes through regulatory history and before it gets anywhere else.

[00:25:03] Speaker 01:
Those were the major points that I intended to raise on rebuttal.

[00:25:06] Speaker 01:
I'd, again, be happy to address any questions the panel have.

[00:25:09] Speaker 02:
Thank you, Councilman.

[00:25:10] Speaker 02:
Well, I actually have one quick question.

[00:25:11] Speaker 02:
Yes, sir.

[00:25:12] Speaker 02:
You cited the Appendix 30, the manual, I think.

[00:25:16] Speaker 02:
Yes, sir.

[00:25:17] Speaker 02:
And there was a change, I guess, to the manual, it looks like.

[00:25:20] Speaker 02:
Was that you happened to know what that was changed from?

[00:25:25] Speaker 02:
Your Honor, I- Was that an addition of something that wasn't there at all before?

[00:25:29] Speaker 01:
You know, it would have been there before in some

[00:25:33] Speaker 01:
in some form, and I do apologize, because I realize there is a possibility that the change could have been to other language.

[00:25:40] Speaker 01:
And so I do apologize.

[00:25:41] Speaker 01:
I will rest on the post-HAC rationalization on I did not understand the M211 reliance to be part of the board decision.

[00:25:57] Speaker 01:
All right, thank you.

[00:25:58] Speaker 01:
I apologize.

[00:25:58] Speaker 00:
Thank you.

[00:25:59] Speaker 00:
Thank you.

[00:26:00] Speaker 00:
Both counsel, the case is submitted.