[00:00:00] Speaker 02:
Okay, our next case is Bell v. McDonough.

[00:00:09] Speaker 02:
Yes, good morning.

[00:00:11] Speaker 02:
Good morning.

[00:00:13] Speaker 02:
Good morning, Your Honor.

[00:00:14] Speaker 02:
Good morning.

[00:00:14] Speaker 02:
Do you need five minutes or time for rebuttal?

[00:00:16] Speaker 02:
Is that even right?

[00:00:17] Speaker 02:
If the court please.

[00:00:19] Speaker 02:
Yes.

[00:00:19] Speaker 02:
I'm sorry?

[00:00:19] Speaker 02:
Yes, please.

[00:00:21] Speaker 02:
Okay.

[00:00:21] Speaker 02:
Do you have five minutes for rebuttal?

[00:00:23] Speaker 02:
You may begin when you're ready.

[00:00:25] Speaker 00:
My name is Myers Morton.

[00:00:27] Speaker 00:
I represent the appellate.

[00:00:28] Speaker 00:
Let me alert the court that I'm hard of hearing.

[00:00:30] Speaker 00:
I have hearing loss.

[00:00:32] Speaker 00:
which means I have a hard time understanding words, and I also find myself speaking louder than I realize.

[00:00:39] Speaker 00:
And I'm sorry if it sounds like I'm yelling at you, it's because I'm unaware.

[00:00:43] Speaker 02:
You can speak as loud as you want.

[00:00:45] Speaker 02:
In fact, that may be helpful.

[00:00:47] Speaker 02:
Thank you, Your Honor.

[00:00:48] Speaker 02:
Number one.

[00:00:49] Speaker 02:
And number two, if we ask you something and you don't quite understand it, feel free to tell us, okay?

[00:00:54] Speaker 00:
Thank you, Your Honor.

[00:00:55] Speaker 02:
I want to make sure you understand and you hear it.

[00:00:57] Speaker 02:
Thank you.

[00:00:58] Speaker 00:
And if I may take this opportunity to say how professional and helpful your clerk's office is.

[00:01:04] Speaker 00:
and very patient, I'd like to do so.

[00:01:08] Speaker 02:
Well, thank you, Counselor.

[00:01:09] Speaker 02:
Some of the staff members are present here today, and I'm sure they'll be happy to hear that.

[00:01:13] Speaker 00:
Yeah.

[00:01:14] Speaker 00:
If court please.

[00:01:16] Speaker 00:
My name is Morris Moore, and I represent the appellant.

[00:01:18] Speaker 00:
His name is Joseph A. Bell.

[00:01:20] Speaker 00:
He's a veteran.

[00:01:22] Speaker 00:
He's 95 years old, and he has had claims pending with the VA for more than 68 years.

[00:01:31] Speaker 00:
He is currently service-connected for prostate problem, back disabilities, and right knee.

[00:01:38] Speaker 00:
What happened in the service is he had an injury that crushed a testicle.

[00:01:42] Speaker 00:
It hurt his back.

[00:01:44] Speaker 00:
It hurt his knee.

[00:01:45] Speaker 00:
It was pretty bad.

[00:01:46] Speaker 00:
And this appeal has to do with an increased rating of his back disability.

[00:01:52] Speaker 00:
That's what all this is about.

[00:01:54] Speaker 00:
And we're trying to increase his back rating and pursue it to an extra scheduler

[00:02:00] Speaker 00:
rating under 38 CFR-3.

[00:02:04] Speaker 02:
Counselor, we read the background information on Mr. Bell, so we understand that in the background.

[00:02:10] Speaker 02:
The question I have for you is the case of Thun v. Shinensky.

[00:02:16] Speaker 02:
Can you explain how this impacts your case?

[00:02:19] Speaker 00:
Well, Thun says

[00:02:22] Speaker 00:
First, it limits what the VA, not the board, it gives different roles for the board and the VA below on what their duties are under the statute.

[00:02:35] Speaker 00:
Under TUN, it gives the instruction to the VA to have initial screening.

[00:02:40] Speaker 00:
But that's what we're already doing today.

[00:02:42] Speaker 00:
That's your case.

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

[00:02:45] Speaker 00:
But the problem we're having is the VA below is taking on a

[00:02:51] Speaker 00:
Now, action, doing something they're not entitled to do.

[00:02:55] Speaker 00:
What they're doing is they're, first of all, sort of like an oxymoron.

[00:02:59] Speaker 00:
They're saying, this is an unusual situation where the schedules don't fit.

[00:03:06] Speaker 00:
This is extraordinary.

[00:03:07] Speaker 00:
And so they're sending it

[00:03:09] Speaker 00:
They're making the determination it is extraordinary, and in the second sense they're saying it's not extraordinary.

[00:03:15] Speaker 00:
It's oxymoron.

[00:03:16] Speaker 05:
I'm confused.

[00:03:17] Speaker 05:
Are you saying that the mere decision to refer under this regulation suggests that the VA has already decided it's extraordinary, or that it's potentially extraordinary and has to be referred to the director, who's the only person that can award special compensation under this statute?

[00:03:35] Speaker 05:
Yes, Your Honor, the Director is only one... No, but I don't understand.

[00:03:39] Speaker 05:
The VA has to make a referral to the Director.

[00:03:41] Speaker 05:
To start with, yes.

[00:03:42] Speaker 05:
But that referral doesn't actually make any determination as to whether it's warranted or not.

[00:03:49] Speaker 00:
Correct.

[00:03:49] Speaker 00:
It's their recommendation is the problem.

[00:03:53] Speaker 05:
Why are they not allowed to recommend?

[00:03:55] Speaker 00:
Because that's what the director is supposed to do to make the decision.

[00:03:58] Speaker 05:
Where in the regulation does it say the director can't rely on the expertise of the agency employees?

[00:04:05] Speaker 00:
He can rely on whatever he decides.

[00:04:08] Speaker 00:
The director can rely on whatever information he has before him that he makes the finding.

[00:04:13] Speaker 05:
didn't he make the planning here?

[00:04:14] Speaker 05:
We have a formal document from the director going through everything and saying, I don't find that this situation requires TDIU.

[00:04:24] Speaker 00:
And it was within two weeks of the recommendation they denied.

[00:04:27] Speaker 00:
I mean, it was, but yes, he made a recommendation, yes, he made a decision to deny extra scheduler, application of extra scheduler.

[00:04:39] Speaker 05:
Are you suggesting he didn't consider all the relevant facts?

[00:04:45] Speaker 00:
They did, plus the recommendation that wasn't allowed to be given, that too.

[00:04:51] Speaker 05:
You keep saying the recommendation wasn't allowed to be given, but what can you study in either the regulation, the statutes, case law that suggests that an agency deciding official can't rely on the recommendations of his subordinates?

[00:05:05] Speaker 00:
Because what happened?

[00:05:08] Speaker 00:
The whole situation is backwards.

[00:05:10] Speaker 00:
We've got a situation under the regulation that says

[00:05:14] Speaker 00:
You cannot refer it to the director unless you decide there is something extraordinary about this disability that the tables don't apply.

[00:05:28] Speaker 05:
They have to make that first.

[00:05:31] Speaker 05:
extraordinary.

[00:05:32] Speaker 05:
Right.

[00:05:32] Speaker 05:
They're not the ones that can make that finding, though, right?

[00:05:35] Speaker 00:
Right, but what they're doing in the same document... I don't understand what you're saying.

[00:05:39] Speaker 05:
What they're saying is this potentially presents an extraordinary case for the director.

[00:05:44] Speaker 05:
They're not agreeing it's extraordinary.

[00:05:46] Speaker 05:
They can't do that under even your interpretation.

[00:05:49] Speaker 05:
It's the director that has to make that finding, isn't it?

[00:05:52] Speaker 00:
The ton, well, I understand tons said, if I'm saying they're at ton or ton, is saying they have to make the initial determination

[00:06:00] Speaker 00:
that it is an extraordinary circumstance.

[00:06:03] Speaker 00:
And all I'm saying is, it's a simple argument.

[00:06:07] Speaker 00:
They're saying it's an extraordinary circumstance.

[00:06:10] Speaker 00:
Then the next two sentences, they're saying it's not extraordinary.

[00:06:14] Speaker 00:
They're saying complete opposites in their referral to the director.

[00:06:22] Speaker 00:
In this situation, what comes out of it shows how it's not working, how it's

[00:06:29] Speaker 05:
Where do you think this requirement that the agency has to make a finding that's an exceptional before it's referred?

[00:06:38] Speaker 05:
Time.

[00:06:39] Speaker 05:
What regulation says that?

[00:06:43] Speaker 00:
The regulation, if I know your honor, I'm going to try to get the regulation in front of me.

[00:06:51] Speaker 05:
I mean, we can't create a requirement at a 12 o'clock.

[00:06:54] Speaker 05:
We must have been interpreting the regulation there.

[00:06:57] Speaker 05:
Where does the regulation say,

[00:06:59] Speaker 05:
that the RO or the board or somebody must make an initial finding of an exceptionality before you can refer under 3.321.

[00:07:10] Speaker 00:
It's the fact that there's a referral to somebody else to make a finding.

[00:07:15] Speaker 00:
Somebody's got to send it to the director.

[00:07:18] Speaker 05:
Yes, but where does it suggest that before you can make that referral, you have to make the initial finding you said they made?

[00:07:25] Speaker 00:
I understand that's from case law, including time.

[00:07:28] Speaker 05:
I mean, let's assume Tom doesn't say what you think it says.

[00:07:32] Speaker 05:
I mean, 3.321, which is the regulation that issued here, 3.321B, just says to accord justice to the exceptional case,

[00:07:44] Speaker 05:
The director of compensation is authorized to approve on the basis of the criteria set forth and other things an extra schedule of evaluation.

[00:07:53] Speaker 05:
It doesn't suggest that an initial determination of exceptionality has to be made, does it?

[00:08:01] Speaker 00:
Not apparently, not in the expressed language of the regulation you're correct on.

[00:08:06] Speaker 05:
And honestly, if the director is the one that has to make that determination, wouldn't it be actually improper for the agency to make that determination before it?

[00:08:16] Speaker 00:
Absolutely.

[00:08:17] Speaker 00:
And that's what I'm suggesting, by making a recommendation, they're suggesting an outcome.

[00:08:23] Speaker 02:
But it's just a recommendation.

[00:08:25] Speaker 00:
Yes, they're calling it that.

[00:08:27] Speaker 05:
How would it get reformed if they didn't make a recommendation, if they didn't send it to the director?

[00:08:32] Speaker 00:
I don't understand why they need to make a recommendation when they're sending it to the director to make that decision.

[00:08:37] Speaker 05:
I mean, do you know how many of these cases the director of compensation probably gets every year?

[00:08:44] Speaker 05:
This person, in addition to all their other jobs, this is the way the government works.

[00:08:48] Speaker 05:
High level officials that make decisions

[00:08:52] Speaker 05:
get staffed.

[00:08:53] Speaker 05:
They get memos with recommendations.

[00:08:55] Speaker 05:
The Solicitor General personally authorizes every appeal the United States takes to an appellate court.

[00:09:01] Speaker 05:
Do you think that the Solicitor General actually looks through the briefs and the record and figures out in every one of those cases whether a appeal is warranted on his or her own determination?

[00:09:14] Speaker 05:
No.

[00:09:14] Speaker 05:
He gets a memo or she gets a memo that says, I recommend this.

[00:09:18] Speaker 05:
Isn't that exactly what's happening here?

[00:09:21] Speaker 00:
Isn't that what?

[00:09:22] Speaker 00:
I'm sorry, Your Honor.

[00:09:23] Speaker 05:
Isn't that exactly what's happening here?

[00:09:24] Speaker 05:
Is the director is getting a memo saying, here are the facts of the case, here's what the regulations are, here is our evaluation, and we, the director, will do this.

[00:09:34] Speaker 05:
The director is freedom, more or less, right?

[00:09:36] Speaker 00:
Yeah, well, in this case, the director gave the wrong opinion.

[00:09:41] Speaker 00:
She gave an up-and-down opinion, which is a different standard altogether.

[00:09:45] Speaker 00:
My point is, this is dysfunctional, what has come out of this, what came out of this.

[00:09:51] Speaker 05:
We've got... Well, you're not challenging the merits of this recommendation, right?

[00:09:55] Speaker 05:
You're challenging the procedures.

[00:09:56] Speaker 00:
The law, yes, sir.

[00:09:58] Speaker 05:
But I don't understand what in the regulation prohibits the director from being staffed on this issue.

[00:10:07] Speaker 00:
The VA, the administrator of the bureaucracy's interpretation of the regulation from their manual says they can make this recommendation.

[00:10:20] Speaker 00:
That is wrong.

[00:10:22] Speaker 05:
They should not be... What regulation is inconsistent?

[00:10:26] Speaker 05:
What statute of regulation is that inconsistent with?

[00:10:29] Speaker 00:
That I'm complaining about is 38 CFR 3.321 on the extra scheduler evaluation.

[00:10:37] Speaker 00:
That's my whole case.

[00:10:38] Speaker 05:
I understand that, but what in that regulation is inconsistent with the amendment of regulation?

[00:10:43] Speaker 05:
Where does it say only the director can do the fact-finding and the evaluation of everything?

[00:10:49] Speaker 00:
It says director's findings.

[00:10:52] Speaker 00:
I mean, the director makes the findings.

[00:10:54] Speaker 00:
And outside of some cases in my brief that I understand mean when it says, I'm paraphrasing, when it says director's findings, he's the one who considers them.

[00:11:04] Speaker 00:
He's the one who makes the decisions.

[00:11:08] Speaker 00:
He should not have gotten the recommendation.

[00:11:10] Speaker 00:
And the problem of getting the recommendation, the whole process, the VA rewrote

[00:11:17] Speaker 00:
the regulation itself and its correspondence and its decision.

[00:11:22] Speaker 00:
It rewrote it, took the words out.

[00:11:24] Speaker 00:
It's completely arbitrary.

[00:11:28] Speaker 00:
We've got a case where the board, in this case, is telling them, the board tells the VA, send it to the director.

[00:11:36] Speaker 00:
The board didn't say, send it to the director and you make a recommendation.

[00:11:41] Speaker 00:
They did it on their own.

[00:11:43] Speaker 00:
In this case, we've got the board repeatedly remanded back the VA saying, do this, get a vocational expert.

[00:11:50] Speaker 05:
But they didn't exactly what the board said.

[00:11:54] Speaker 05:
The board sent it to the VA and the VA sent it off to the director.

[00:11:59] Speaker 00:
Oh, but they added in the recommendation.

[00:12:01] Speaker 00:
What I'm saying here is that... Where did the board say you can't send a director?

[00:12:04] Speaker 00:
They didn't say you can't, but I'm just saying this is a case where

[00:12:09] Speaker 00:
The board would send it to the VA and say, get a vocational expert opinion.

[00:12:13] Speaker 00:
And the VA expressly said, no, we're not going to.

[00:12:18] Speaker 02:
Well, that's not what we're saying.

[00:12:19] Speaker 02:
We're into your rebuttal time, but Judge Stark has a question.

[00:12:22] Speaker 02:
Just really quick.

[00:12:23] Speaker 04:
In your briefing, you had argued at a certain point that 38 U.S.C.

[00:12:27] Speaker 04:
Section 1155 does not actually enable extra scheduler awards.

[00:12:32] Speaker 04:
Have you abandoned that argument, or are you still— I'm sorry, Your Honor.

[00:12:36] Speaker 04:
The statute, section 1155, you have argued in your opening brief that it doesn't even allow the agency to have extra schedule or rewards.

[00:12:47] Speaker 04:
You didn't address that in the reply.

[00:12:48] Speaker 04:
I assume you've dropped that argument.

[00:12:50] Speaker 00:
I don't want to drop anything, Your Honor.

[00:12:52] Speaker 00:
My point being, with that extra schedule, that's 11 instead of 10.

[00:13:00] Speaker 00:
That's 11.

[00:13:01] Speaker 04:
Right, but your client is arguing for the 11th.

[00:13:05] Speaker 04:
So I didn't understand why you... Well, the 11th's not working.

[00:13:10] Speaker 04:
I see.

[00:13:10] Speaker 04:
So you are contending it's illegal to have an 11th.

[00:13:13] Speaker 00:
Yeah, I think the court, if the court please, I think the VA, the Federal agencies are on the muck and their interpretation of the rules shouldn't be listened to anymore.

[00:13:26] Speaker 00:
If the court please.

[00:13:31] Speaker 03:
Mr. Hooker.

[00:13:34] Speaker 03:
Yes, sir.

[00:13:34] Speaker 03:
May it please the court.

[00:13:36] Speaker 03:
The scope of Mr. Bell's appeal is extremely narrow.

[00:13:39] Speaker 03:
Mr. Bell is not challenging the director of discretion to deny his claim for extra schedule or rating.

[00:13:43] Speaker 03:
He's not challenging the appeal of the substance of that denial either.

[00:13:47] Speaker 03:
Mr. Bell is only challenging that the regional office could not provide a recommendation upon forwarding the case for her consideration.

[00:13:54] Speaker 03:
That argument flies in the face of Tun.

[00:13:58] Speaker 03:
that the regional office, the RO, is the body of initial review for extra scheduled rating claims and can prevent them from going to the director full stop.

[00:14:07] Speaker 03:
That decision would be reviewable by the board, but no referral is required.

[00:14:10] Speaker 03:
It can be stopped there.

[00:14:12] Speaker 03:
That's the holding in TUN.

[00:14:14] Speaker 03:
So to exercise a lesser included power.

[00:14:18] Speaker 02:
So in TUN, we found that the regulation is silent on this matter.

[00:14:23] Speaker 02:
and we endorse the VA's practice of providing the recommendation to the director, since the director still has full authority and power.

[00:14:34] Speaker 02:
But what we're talking about here is a practice, correct?

[00:14:38] Speaker 02:
Yes, sir.

[00:14:40] Speaker 03:
Okay.

[00:14:40] Speaker 03:
What's being challenged is just a procedural step.

[00:14:43] Speaker 02:
So the counselor says it's not in the law, and it could be referred to as a practice.

[00:14:49] Speaker 02:
Now, explain to me why

[00:14:51] Speaker 02:
Why that's not correct?

[00:14:54] Speaker 03:
I guess I'm not following the question very well.

[00:14:56] Speaker 02:
Well, explain to me if it's a practice.

[00:14:59] Speaker 02:
Respond to Council's arguments on what I just expressed to you and what we agree on.

[00:15:06] Speaker 02:
What we're talking about here, it's not per se a regulation.

[00:15:10] Speaker 02:
In turn, we found the practice to be adopted by silence.

[00:15:15] Speaker 02:
So do you... Yes, sir.

[00:15:17] Speaker 03:
So under 3.321B,

[00:15:20] Speaker 03:
The director is given the discretion.

[00:15:22] Speaker 03:
That's the regulatory authority given.

[00:15:24] Speaker 03:
But the regulation is silent.

[00:15:26] Speaker 03:
It doesn't prejudge.

[00:15:27] Speaker 03:
It doesn't explain.

[00:15:28] Speaker 03:
It doesn't limit or prescribe how the director is meant to make.

[00:15:31] Speaker 03:
those findings, how the director is meant to exercise that discretion.

[00:15:34] Speaker 03:
Those matters are left to the director's discretion.

[00:15:36] Speaker 03:
And so the practice of the VA is to do what Judge Hughes was saying, is to practice just like everywhere else in the administrative state.

[00:15:43] Speaker 03:
You prepare a memo, you provide the facts, you provide the law, you provide a recommendation, and then it goes before the decision maker.

[00:15:50] Speaker 03:
and then the decision maker, anyone who has been in this process knows the decision maker will review it and then send back notes or edits or perhaps questions or raise issues and then make their final decision, which is capable of just overruling the recommendation.

[00:16:03] Speaker 02:
It happens all the time.

[00:16:05] Speaker 02:
There is occasion.

[00:16:07] Speaker 02:
An existing administrative practice is overruled.

[00:16:11] Speaker 02:
A passive court finds it to be illegal.

[00:16:15] Speaker 02:
Correct?

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

[00:16:16] Speaker 02:
Is this one of those instances?

[00:16:18] Speaker 02:
No.

[00:16:19] Speaker 03:
In fact, in turn, the court recognized the regional office's power both to withhold from the director if it deemed it not appropriate and to provide a recommendation.

[00:16:30] Speaker 05:
I will say, there would have to be something in the statute of regulation that's inconsistent with this practice for us to find it in that one, right?

[00:16:40] Speaker 05:
There's nothing in the regulation of the statute that even speaks to whether

[00:16:44] Speaker 05:
the VA can staff it like this.

[00:16:47] Speaker 03:
No, there isn't.

[00:16:47] Speaker 03:
And in fact, that's the whole thing.

[00:16:49] Speaker 05:
I mean, the regulation does, at a certain point, require the director to actually make the actual economy into an exercise discretionary.

[00:16:57] Speaker 03:
The director does, yes, 3.321 does pass that decision to the director.

[00:17:01] Speaker 05:
So we might get to a point where the director didn't actually properly

[00:17:07] Speaker 05:
you know, go through and say, I made these findings, I exercised my direction, but defer to the recommendation, that might not be appropriate.

[00:17:16] Speaker 03:
That does not seem appropriate.

[00:17:17] Speaker 03:
That's right.

[00:17:18] Speaker 02:
Yes, the director has to exercise some discretion.

[00:17:20] Speaker 02:
For all the reasons stated by the VA, I hereby find something.

[00:17:26] Speaker 02:
The director's got to state a rationale or findings, some type of findings, to support its discretion.

[00:17:35] Speaker 03:
I think the director probably could adopt the recommendation, but would have to explain that adoption of the recommendation.

[00:17:41] Speaker 03:
And that's what happens here.

[00:17:42] Speaker 03:
If you read the director's decision, there's synthesis of the materials.

[00:17:46] Speaker 03:
There's a big list of flexion of the torso is what's mostly reported in terms of lumbar spine disability.

[00:17:53] Speaker 03:
the facts and law that we'll provide to the director.

[00:17:55] Speaker 03:
And the director summarizes all that.

[00:17:57] Speaker 03:
None of this is greater than 30%.

[00:17:59] Speaker 03:
We don't have a lot of hospital visits.

[00:18:00] Speaker 03:
I'm not finding what I would normally need to find to rule an extra schedule reading appropriately.

[00:18:09] Speaker 04:
There is a forfeiture argument as well.

[00:18:11] Speaker 04:
Could you just help me on that one?

[00:18:14] Speaker 04:
Because it seems as if the argument

[00:18:17] Speaker 04:
we're hearing today was not as well developed in front of the Veterans Court, but it was addressed by the Veterans Court.

[00:18:25] Speaker 04:
So can we really say that it was forfeited and we lack jurisdiction?

[00:18:30] Speaker 03:
Well, let me clarify the forfeiture argument first.

[00:18:32] Speaker 03:
I'm not arguing that the court does not have jurisdiction to maintain it.

[00:18:35] Speaker 03:
Forfeiture, as I understand, is a discretionary doctrine.

[00:18:37] Speaker 03:
And if this court wishes to consider the argument, it has the discretion to do so.

[00:18:42] Speaker 03:
The argument that you find presented to the Veterans Court was simply that the director should not have considered the recommendation.

[00:18:49] Speaker 03:
They shouldn't have provided a recommendation.

[00:18:50] Speaker 03:
No regulation was cited.

[00:18:51] Speaker 03:
No language was cited.

[00:18:52] Speaker 03:
No statute was cited.

[00:18:53] Speaker 03:
No argument about statute of regulation was provided.

[00:18:55] Speaker 03:
And the reason we argue the court shouldn't exercise this discretion to hold the argument forward with it is because not only that's what the Veterans Court said, but also because this court, the arguments that you can review, that you have jurisdiction to review from the Veterans Court are statutory and regulatory arguments.

[00:19:11] Speaker 03:
If you take jurisdiction over arguments like this that haven't been presented in the Veterans Court, you're setting yourself up to be the Court of First Review.

[00:19:18] Speaker 02:
Judge, you're not arguing that counsel have forfeited this argument?

[00:19:23] Speaker 03:
No, we are arguing that counsel have forfeited this argument, or that Mr. Bell forfeited this argument at the Veterans Court.

[00:19:28] Speaker 03:
This Court has discretion in it, and if it wishes to take jurisdiction over it, it has the power to do so.

[00:19:35] Speaker 04:
Have we set out criteria in Veterans cases for

[00:19:38] Speaker 04:
how to measure, how developed an argument was made to the veterans court?

[00:19:44] Speaker 03:
If so, I don't have that standard to my name.

[00:19:48] Speaker 04:
Do you have anything to say on the section 1155 and whether extra schedule or benefits are even lawful?

[00:19:54] Speaker 03:
Nothing more than what's in our brief.

[00:19:56] Speaker 03:
I don't think that's a reasonable interpretation of the statute as we set forth.

[00:19:59] Speaker 03:
It's certainly not a pro-veteran construction.

[00:20:02] Speaker 03:
It would fly in the face of longstanding practice.

[00:20:07] Speaker 03:
Some of the documentation we set in our brief goes back 100 years, back to 1930, when regulations were promulgated regarding extra schedule ratings.

[00:20:14] Speaker 03:
This is a very well established practice.

[00:20:16] Speaker 03:
If it has never been authorized that entire time, it would be quite a surprise if it went to the Veterans Bar, to the VA itself, to 100 years of legislators.

[00:20:34] Speaker 01:
Please, you have a little less than three minutes.

[00:20:38] Speaker 01:
You have a little less than three minutes.

[00:20:41] Speaker 00:
I addressed my inability to develop argument very well below.

[00:20:47] Speaker 00:
I think that the case law, I brought enough of the issue up, I believe, which is the arbitrariness and inconsistency of what happened here and the outcome.

[00:21:01] Speaker 00:
And I guess my last point is when the

[00:21:03] Speaker 00:
Ultimately, when the board, after the director made his opinion, the board denied the claim for extra schedule or consideration that we appealed.

[00:21:15] Speaker 00:
And the basis of their decision, the main basis of the decision is the director's opinions are highly probative.

[00:21:23] Speaker 00:
They influenced him and then said, well, he made that decision.

[00:21:27] Speaker 00:
And it's just the regulation calls for justice.

[00:21:32] Speaker 00:
And we question whether this 95-year-old veteran, who's had claims pending for almost seven decades, is getting justice.

[00:21:41] Speaker 00:
And these circumstances don't appear to be, if the Court pleads.

[00:21:45] Speaker 00:
Thank you.

[00:21:46] Speaker 02:
Thank you, Counselor.

[00:21:48] Speaker 02:
The Court now takes this case under advisement.

[00:21:51] Speaker 02:
We thank the parties for their arguments.