[00:00:01] Speaker 00:
for Frazier v. McDonough, Mr. Carpenter.

[00:00:07] Speaker 01:
May it please the court, Kenneth Carpenter, hearing on behalf of Ms.

[00:00:10] Speaker 01:
Jeanine Frazier, who is the daughter of the veteran, Clarence Frazier, who died during the proceedings before the Veterans Court.

[00:00:20] Speaker 01:
At issue in this appeal is a question of regulatory interpretation, specifically ETA Regulation 38 CFR 4.59.

[00:00:29] Speaker 01:
and whether or not the Veterans Court in a presidential opinion in Sowers versus McDonald misinterpreted the provisions of that regulation.

[00:00:39] Speaker 01:
We believe that the Veterans Court did so, and in this case, the single judge relied upon the Sowers decision to affirm the decision of the board not to award a compensable rating to Mr. Frazier.

[00:00:56] Speaker 01:
The basic issue in this case is whether or not the language of 59-4.59 is clear and unambiguous, and whether or not it requires the assignment of a minimum compensable rating for a joint when there is painful motion.

[00:01:13] Speaker 01:
There is no dispute in the facts of this case that there is painful motion.

[00:01:17] Speaker 01:
There was evidence of painful motion.

[00:01:19] Speaker 04:
I appreciate your argument.

[00:01:22] Speaker 04:
So how are we, not just to read, I want to go beyond just the language of 459 and your view of how 459 interacts with all the diagnostic codes.

[00:01:35] Speaker 04:
Does it supersede them?

[00:01:37] Speaker 04:
Does it interact with them?

[00:01:40] Speaker 04:
Or is it just a standalone, that you don't even have to reach the diagnostic codes?

[00:01:44] Speaker 04:
This in and of itself establishes the right to a rating.

[00:01:47] Speaker 01:
Well, given those options, I would choose the last option, which I believe is a standalone mandatory obligation on the part of the secretary.

[00:01:57] Speaker 01:
When there is evidence, as there is in this case, of painful motion in a joint, that that requires the minimum rating.

[00:02:04] Speaker 01:
The minimum rating, compensable rating, is 10%.

[00:02:06] Speaker 01:
I do not believe that there is any requirement for consideration of any other diagnostic code, and that this regulation dictates the outcome without needing to rely upon or even consider any other diagnostic code.

[00:02:26] Speaker 00:
I would point out further.

[00:02:28] Speaker 00:
Is the assumption that this itself is a diagnostic code?

[00:02:31] Speaker 01:
I'm sorry?

[00:02:31] Speaker 00:
Is the contention that this itself is a diagnostic code?

[00:02:35] Speaker 01:
I suppose it could be interpreted that way, Your Honor.

[00:02:37] Speaker 01:
It certainly contains the language that expresses a clear intent that the schedule is to recognize painful motion as a disability.

[00:02:49] Speaker 01:
And therefore, as a disability, any time there is such evidence, the veteran is entitled to at least the minimum compensable rate.

[00:03:00] Speaker 04:
So this provision supersedes or overrides anything in the diagnostic code.

[00:03:06] Speaker 01:
I believe it does.

[00:03:07] Speaker 04:
And in this case.

[00:03:08] Speaker 04:
This seems like an issue that is pretty potentially widespread and occurs a lot in terms of the pain and the joint motion.

[00:03:18] Speaker 04:
And Sowers was in 216.

[00:03:20] Speaker 04:
I mean, I think you might say, well, nobody's brought this to our.

[00:03:22] Speaker 04:
This hasn't percolated up again, because everybody just went to bed on Sowers.

[00:03:28] Speaker 04:
Why hasn't this come up before?

[00:03:31] Speaker 04:
If your reading is arguably right, then this would have affected thousands and thousands and thousands of cases.

[00:03:39] Speaker 01:
I have no answer to that question other than the Supreme Court's observation.

[00:03:43] Speaker 01:
Actually, I believe it was this Court's observation.

[00:03:45] Speaker 01:
in Gardner that prior to judicial review, the regulations of the VA aged quite nicely because there was no judicial review.

[00:03:55] Speaker 01:
And unfortunately, this issue has not been raised before.

[00:03:59] Speaker 01:
It was raised in Sowers.

[00:04:01] Speaker 01:
Sowers was not appealed to this court.

[00:04:03] Speaker 01:
And so it became the controlling precedent

[00:04:07] Speaker 01:
that control the single-judge disposition in this matter.

[00:04:11] Speaker 01:
But that does not remove the fact that there isn't any ambiguity in this regulation.

[00:04:19] Speaker 03:
Let me see if I understand what you're saying.

[00:04:22] Speaker 03:
You're saying, in effect, that because 10 percent is the lowest compensable rating that the VA can assign in any instance

[00:04:30] Speaker 03:
that that is the compensable rating for pain, no matter what.

[00:04:35] Speaker 03:
It's always going to be 10%.

[00:04:37] Speaker 03:
I think that was the answer you gave.

[00:04:39] Speaker 01:
It's going to be at least 10%.

[00:04:41] Speaker 03:
Well, but where do you get the higher number if you're not looking at the diagnostic codes?

[00:04:46] Speaker 03:
It seems to me, in order to get, let's say, a 20% or a 50%, you have to start with the diagnostic code that says the minimum is 50%, right?

[00:04:55] Speaker 01:
Well, Your Honor, it's interesting that you presented that.

[00:04:59] Speaker 03:
I didn't, but my question was clear.

[00:05:01] Speaker 01:
Well, no, I believe it is.

[00:05:03] Speaker 01:
But what it raises is a acknowledged, I don't want to say defect, but omission in the creation of the rating schedule.

[00:05:14] Speaker 01:
And that's addressed by the VA by regulation and provides for rating by analogy.

[00:05:22] Speaker 01:
that there is no rating code for pain, even though this regulation, I believe, requires that.

[00:05:30] Speaker 03:
But there is a rating code for his particular condition, which has a compensable rating of zero.

[00:05:38] Speaker 01:
I don't believe so, Your Honor, because the diagnostic code that's being used is for limitation of motion, not for painful motion.

[00:05:48] Speaker 03:
Well, I understand.

[00:05:49] Speaker 03:
But for the condition of limitation of motion, I think we can all agree that the right diagnostic code was, what was it, 5280?

[00:05:59] Speaker 03:
5230.

[00:06:06] Speaker 03:
5230 I think it was right.

[00:06:09] Speaker 03:
Yeah, yeah 5230 so that that appears to be the If he had no pain that would be where we would look right Yes, probably okay and and what you're saying is are you saying it's one of two things either you start with 5230 because that's his condition and then you ask the question of What's the minimum?

[00:06:34] Speaker 03:
And you say, well, the minimum is actually not zero, which is specified in 5230, but it's 10%, because that's the lowest that can be awarded by the VA in any case, right?

[00:06:46] Speaker 01:
I believe, Your Honor, the distinction here doesn't have any difference.

[00:06:51] Speaker 01:
Because whether you start with 4.59 or you start with the diagnostic code, you always arrive at the same place.

[00:07:00] Speaker 01:
which is if there is evidence of painful motion, then the minimum compensable rating must be assigned.

[00:07:07] Speaker 03:
And what I'm trying to get at is, is that always 10% or is it the minimum within the diagnostic code that applies to the particular disability?

[00:07:17] Speaker 01:
Since the diagnostic code does not address that, Your Honor, then the VA is going to be required either to write a regulation that defines the level of severity of pain

[00:07:30] Speaker 01:
in terms of rating for the loss of impairment resulting from pain, which does not currently exist.

[00:07:39] Speaker 01:
Or they're going to have to rate by some analogous existing diagnostic code to rate more than 10%.

[00:07:47] Speaker 04:
Can I just ask, looking at 52.28, which is some limitation of motion, they don't seem to include the word pain.

[00:07:56] Speaker 01:
They do not.

[00:07:57] Speaker 04:
So for stuff, 52.30 is a zero rating.

[00:08:01] Speaker 04:
But 52.28 has a 20% rating.

[00:08:04] Speaker 04:
Is it your view that the pain

[00:08:08] Speaker 04:
would then add another minimal 10% or as long as there's some rating that you get outside of the pain threshold, then that's the rating you have.

[00:08:17] Speaker 04:
But this 54.79 only applies if you would otherwise under the codes get a zero.

[00:08:25] Speaker 01:
I believe the plain language of the intent of the schedule is to recognize painful motion with the joint as productive of a disability means that a 10% rating, a minimum rating, will be assigned for that painful motion.

[00:08:41] Speaker 01:
So that would be in addition to any rating based upon any other limitation.

[00:08:47] Speaker 04:
So everything else in the code, even other in the 5200 series,

[00:08:52] Speaker 04:
which deals with a lot of range of motion for various fingers.

[00:08:58] Speaker 04:
Whatever that is, even if it already has 10%, 4.79 gives you an extra 10% just for the pain aspect.

[00:09:07] Speaker 00:
It seems to me part of your problem is that some of these diagnostic codes mention pain themselves.

[00:09:14] Speaker 00:
They do.

[00:09:15] Speaker 00:
It seems a little odd that you would have two separate provisions dealing with pain.

[00:09:24] Speaker 01:
Well, with all due respect to the Secretary, I don't find that odd.

[00:09:29] Speaker 01:
I find that entirely consistent with the regular appearance of inconsistencies within the Secretary's own regulations.

[00:09:40] Speaker 01:
So I don't think the oddity of it should have any effect on interpreting the plain language of a regulation

[00:09:47] Speaker 01:
that has, as Judge Frost suggests, been on the books for quite some time that is clear and unambiguous and states that you're going to get at least a minimum rating, which must be 10% under the available rating schedule under 1155.

[00:10:07] Speaker 00:
Well, it really says that you get, it says that the, it's the instruction of the secretary, right?

[00:10:15] Speaker 00:
No, it says that... It says the intention is to recognize actual painful due to at least... As entitled to.

[00:10:28] Speaker 00:
Yeah.

[00:10:30] Speaker 01:
At least a minimum compensable rating for the joint.

[00:10:34] Speaker 03:
What does the joint mean in this context?

[00:10:37] Speaker 03:
That's pretty vague.

[00:10:39] Speaker 03:
I mean, does it mean, in other words, where would I try to find the minimum compensable rating for the joint?

[00:10:48] Speaker 03:
other than in the diagnostic codes.

[00:10:50] Speaker 01:
You'd go to 1155, Your Honor.

[00:10:52] Speaker 01:
1155 sets out the sequential ratings.

[00:10:56] Speaker 01:
I'm sorry, 1114.

[00:10:58] Speaker 01:
I apologize.

[00:10:59] Speaker 01:
It's not 1155.

[00:11:00] Speaker 01:
It's 1114, and it sets out the sequential ratings beginning with 10% and ending with total.

[00:11:10] Speaker 03:
Well, yes, but it doesn't have anything to do with joints.

[00:11:14] Speaker 01:
No, because the intention is to apply that criteria when you are assigning a rating.

[00:11:22] Speaker 03:
But then we're back to your initial point that

[00:11:26] Speaker 03:
what the regulation really means, or what I understood to be your initial point, what the regulation means is that it's always 10%.

[00:11:33] Speaker 03:
Yeah.

[00:11:35] Speaker 01:
Well, it's always at least 10%, Your Honor.

[00:11:38] Speaker 03:
And when would it be more if all you have is pain?

[00:11:43] Speaker 03:
What would you look to as an indication that it should be higher?

[00:11:47] Speaker 01:
The same thing you would look for in any other evaluation of a disability.

[00:11:53] Speaker 01:
That is, the degree of severity

[00:11:55] Speaker 01:
the impairment of the veterans' earning capacity.

[00:11:59] Speaker 01:
And if that pain is mild or intermittent, that may be only the minimum rating.

[00:12:05] Speaker 01:
But if that pain is regular and persistent, then that would be entitled to a higher rating as mandated by Congress in 1155 to create the rating.

[00:12:16] Speaker 03:
You wouldn't look at the diagnostic codes at all for that purpose?

[00:12:20] Speaker 01:
Well, you would look at them to see if there is one.

[00:12:24] Speaker 01:
As Dr. Dyke pointed out, there are some diagnostic codes that reference pain, but in this particular diagnostic code, in which the VA relied upon to award a non-compensable rating, there is no reference to pain.

[00:12:38] Speaker 00:
What was your contention that maybe under these diagnostic codes that mentioned pain, you could get higher than the minimum rating?

[00:12:46] Speaker 01:
Honestly, since that's not an issue in this appeal, I really don't know.

[00:12:51] Speaker 01:
What Mr. Frazier, I believe, is entitled to was a minimum rating for each of the fingers that were recognized as a disability at the minimum rating of 10%.

[00:13:05] Speaker 04:
But as I said, just to clarify the question I asked you before, because it just expands the universe of cases that will be an issue here, even in diagnostic codes that involve motion of joints, that reward a rating of either 10% or 20%, but don't use the word pain in that.

[00:13:23] Speaker 04:
You're saying this regulation then operates to give you an extra 10%?

[00:13:27] Speaker 01:
An enhancement, absolutely.

[00:13:30] Speaker 03:
So just to be clear about this, because I'm still having trouble with whether we're talking about 10% or some floating number above 10%.

[00:13:39] Speaker 03:
If you take, for example, diagnostic code 5219, that's for multiple digits, unfavorable ankylosis.

[00:13:51] Speaker 03:
That has ratings ranging from 40% to 20%.

[00:13:56] Speaker 03:
Now, is it your position that

[00:14:00] Speaker 03:
If pain were associated with that, you would get 20% or you would get more than 20%.

[00:14:07] Speaker 01:
You would get the initial 20% plus at least an additional 10%.

[00:14:12] Speaker 03:
And that would be calculated by the severity of the pain as perceived by the examiner?

[00:14:20] Speaker 01:
Yes.

[00:14:20] Speaker 01:
is discussed in the briefing, the VA provides by regulation under 38 CFR 3.321B1 for extra scheduler consideration to determine what that additional rating would be over the 10%.

[00:14:37] Speaker 01:
OK.

[00:14:37] Speaker 00:
I thought that in our decision at Saunders, we said that pain was compensable because of its effect on function.

[00:14:48] Speaker 00:
You did, Your Honor.

[00:14:51] Speaker 00:
You seem to be arguing for a separate theory of compensation for pain standing alone that doesn't affect function.

[00:15:00] Speaker 01:
No, I'm arguing that the plain language of this regulation identifies painful motion in a joint as being productive of a disability.

[00:15:14] Speaker 01:
So it answers the question that was answered in Saunders, whether or not pain is or isn't a disability.

[00:15:21] Speaker 01:
And it then goes on to say that a minimum rating of 10% will be assigned for any veteran who suffers painful motion in a joint.

[00:15:34] Speaker 00:
OK, but my problem is this.

[00:15:36] Speaker 00:
In some of these diagnostic codes, loss of function is compensable.

[00:15:41] Speaker 00:
It doesn't refer to pain.

[00:15:43] Speaker 00:
But that would seem to me to subsume a rating based on pain, which impairs function.

[00:15:49] Speaker 00:
and that what you're arguing for is for a 10% rating on top of that, whereas in fact there's duplication between

[00:16:00] Speaker 00:
the compensation for pain because it affects function and the compensation for function without regard to service.

[00:16:06] Speaker 01:
Well, this court's not addressed that issue, but the Veterans Court has addressed that issue and has clearly said, and I believe there's a general counsel's opinion that also says, when there are different manifestations of a disability, each of those separate manifestations, so long as they do not overlap or are duplicitous, are entitled to a separate rating.

[00:16:26] Speaker 00:
So it is not a question.

[00:16:44] Speaker 01:
Well, yes, Your Honor, I am saying that, but that's not the issue in this appeal.

[00:16:49] Speaker 01:
The issue in this appeal is, did Mr. Frazier, was he entitled to the minimum rating of 10% in each of the two fingers in which the evidence clearly shows he had painful motion?

[00:17:05] Speaker 01:
That's all that this appeal is about.

[00:17:08] Speaker 01:
Yes, there are ripple effects to that holding, but those are going to be matters that are going to have to be dealt with in another case.

[00:17:23] Speaker 02:
Good morning, your honors, and may it please the court.

[00:17:27] Speaker 02:
This court should affirm the decision of the Veterans Court because the Veterans Court has correctly recognized since Sowers that section 4.59 does not create what I'll loosely term a freestanding painful motion disability waiting.

[00:17:45] Speaker 04:
So what does it do?

[00:17:47] Speaker 04:
I mean, the terms are quite explicit.

[00:17:50] Speaker 04:
And it doesn't seem like leaving a lot of room for discretion.

[00:17:54] Speaker 04:
So what does it do?

[00:17:57] Speaker 04:
What purpose does it serve?

[00:17:59] Speaker 02:
Well, first of all, it should be read in conjunction with the diagnostic codes themselves.

[00:18:04] Speaker 02:
And that's clear from the language of the regulation, which states it doesn't state there should be a minimum 10% rating.

[00:18:10] Speaker 04:
That answer cuts both ways.

[00:18:12] Speaker 04:
Because read in connection with the codes, it has to be read.

[00:18:15] Speaker 04:
I would think that makes sense for Mr. Carpenter as well.

[00:18:18] Speaker 04:
So if you have a 0% rating in 5230, you change that to a minimal compensable rating for the joint of 10%.

[00:18:28] Speaker 02:
No, Your Honor, that part I would not agree with.

[00:18:31] Speaker 02:
Respectfully, the language of the regulation says it is the intent of the schedule.

[00:18:36] Speaker 02:
So it makes clear that the primary vehicle here is the schedule, and that also is consistent with statute section 1155, which indicates that VA should create a schedule.

[00:18:47] Speaker 02:
as the Veterans Court has recognized, these preparatory provisions add flexibility.

[00:18:54] Speaker 02:
They explain how to interpret the schedule.

[00:18:56] Speaker 02:
But it's ultimately the schedule.

[00:18:57] Speaker 04:
But if it says the intent of the schedule, so that means that the schedule should be changed, right?

[00:19:01] Speaker 04:
So we have one that says the intent of the schedule was to give you a minimally compensable rating.

[00:19:08] Speaker 04:
And the schedule says your rating is zero.

[00:19:11] Speaker 04:
How do you reconcile those two?

[00:19:13] Speaker 02:
Well, I think the way to harmonize that goes through the example that we gave at page 12, footnote 6 of our brief.

[00:19:21] Speaker 02:
There are certain diagnostic codes under the schedule where this provision would operate to ensure that you get the minimum rating under that diagnostic code if there's painful motion.

[00:19:31] Speaker 02:
The example we gave was of a knee joint under diagnostic code 5261, where if you still had your full, and this is the same example that the Veterans Court gave.

[00:19:42] Speaker 02:
if you still had your full range of motion and you had pain, you wouldn't be eligible.

[00:19:47] Speaker 02:
That code, unlike 5230, has a range of compensable ratings that go from zero to whatever, more than zero.

[00:19:56] Speaker 02:
And the point is, if you still have your full motion under that code, you would only get zero.

[00:20:02] Speaker 02:
With the addition of four point five nine if you have your full range of motion But you have pain in the joint you would be eligible for not zero but the minimal Compensable rating under that code what this is not designed to do is take the code like 5230

[00:20:18] Speaker 02:
that has no compensable rating for any amount of disability.

[00:20:24] Speaker 02:
The VA recognized Mr. Frazier's painful motion as a disability, but rated it under a diagnostic code that says no matter what happens if you're under this code, your rating is zero.

[00:20:40] Speaker 02:
And 4.59 is not intended to change that.

[00:20:43] Speaker 03:
What do you say to Mr. Carpenter's argument that under the statute,

[00:20:47] Speaker 03:
The minimum compensable rating is 10%, and therefore there has to be at least a minimum compensable rating of 10% without regard to what the contents of the particular diagnostic code might be.

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

[00:21:04] Speaker 02:
A couple of different responses there.

[00:21:06] Speaker 02:
And I'll get to this in a moment.

[00:21:07] Speaker 02:
But I think the argument has changed a little bit from what was argued before the Veterans Board.

[00:21:12] Speaker 02:
And I want to explain that.

[00:21:13] Speaker 02:
But it doesn't answer your question directly.

[00:21:14] Speaker 02:
So let me answer that question directly.

[00:21:17] Speaker 02:
I mean, this court has addressed that issue, I think, in Wingard, this court's decision in Wingard, where the court said under the statute, which is section, the jurisdictional statute, 7252B,

[00:21:30] Speaker 02:
You can't really challenge the concept that the court didn't have jurisdiction to challenge the concept of, the court didn't have jurisdiction to interchange someone's challenge to the concept of 0% rating, right?

[00:21:45] Speaker 02:
And what I understand Appellant's argument to be is that 1154 has ratings from 10% to 100%, but it doesn't have a 0%, and that's illegal.

[00:21:54] Speaker 02:
That's what the court addressed in Wingard and said, no, that's not something we have jurisdictional.

[00:21:58] Speaker 03:
So setting aside the jurisdictional issue,

[00:22:00] Speaker 03:
What do you think is the right answer to his argument on the merits of the statutory pretension?

[00:22:09] Speaker 02:
I think the right answer here is that

[00:22:12] Speaker 02:
Jumping off what I said earlier, 4.59 comes into play if you have a diagnostic code that has zero and more than zero ratings, that if you have painful motion, it explains that you're not going to get the zero, you're going to get the 10%, or then at whatever level your disability is rated under the code in conjunction with being attentive to the painful motion.

[00:22:35] Speaker 02:
but what 4.59 does not do is create a freestanding 10% disability rating for

[00:22:43] Speaker 02:
for painful motion, period.

[00:22:45] Speaker 02:
If you're under a code that just says no amount of disability under this code gets a rating of greater than 0%, then that's the rating that the code provides.

[00:22:57] Speaker 02:
And that relates to how now Ms.

[00:23:01] Speaker 02:
Frazier's argument has changed on appeal.

[00:23:04] Speaker 02:
I think this is significant.

[00:23:05] Speaker 02:
What they were arguing below and is consistent with our understanding here is not that there is

[00:23:12] Speaker 02:
no matter what, you get 10%.

[00:23:13] Speaker 02:
What they were arguing is that as a result of 4.59, that Mr. Frazier's condition had to be rated under a different diagnostic.

[00:23:24] Speaker 02:
That essentially, even though he was correctly rated under 52.30, that you had to apply the compensable ratings under other diagnostic codes for this joint that had compensable rating amounts so that

[00:23:36] Speaker 02:
Even though he didn't have ankylosis, right?

[00:23:38] Speaker 02:
No one's arguing that he had ankylosis But they were saying he has to be rated under the the 10% at least that's available under Diagnostic codes 52 19 or 52 23 suppose those provide the minimum

[00:23:55] Speaker 02:
Okay, fair.

[00:23:57] Speaker 03:
Let me see if I understand what you're saying as to what the right outcome under a different diagnostic code would be.

[00:24:03] Speaker 03:
Let's take 5219, which has a minimum of 20 percent, not 10 percent.

[00:24:09] Speaker 03:
Sure.

[00:24:10] Speaker 03:
Would you, in your view, is the application of 4.59 to a case in which that were the diagnostic code that applied

[00:24:23] Speaker 03:
The minimum compensable rating would be 20%, or would it be the 10% referred to in the statute?

[00:24:30] Speaker 02:
No, it would be the 20%.

[00:24:32] Speaker 03:
20%.

[00:24:32] Speaker 03:
So you look at the diagnostic code.

[00:24:35] Speaker 03:
You look at the smallest number under the diagnostic code, assuming that otherwise he doesn't have a higher rating under the diagnostic code.

[00:24:44] Speaker 03:
And then you pick that number, whether it's 0 or 10 or 20.

[00:24:47] Speaker 02:
Exactly.

[00:24:49] Speaker 02:
Yes, Your Honor.

[00:24:50] Speaker 02:
That's exactly our view.

[00:24:51] Speaker 00:
I don't understand your theory as to how 4.59 works with the diagnostic cuts.

[00:25:01] Speaker 00:
say that someone has a role to play there, what role does the captain play?

[00:25:06] Speaker 02:
that 4.59 has a role to play.

[00:25:08] Speaker 02:
What does it do?

[00:25:10] Speaker 02:
I think it does exactly what Judge Bryson was suggesting.

[00:25:14] Speaker 02:
If you're diagnosed under one of the diagnostic codes, and you're also diagnosed as having painful motion, you're going to get the minimum under that code, whether it's 10%, whether it's 20%, whether it's 0%.

[00:25:28] Speaker 00:
I don't understand.

[00:25:28] Speaker 00:
What is 4.59 doing there?

[00:25:30] Speaker 00:
I mean, the code tells you what the ratings are.

[00:25:34] Speaker 02:
Well, that's the basic.

[00:25:35] Speaker 00:
How does it change a result?

[00:25:39] Speaker 00:
Explain to me how it changes a result that otherwise occur under the diagnostic.

[00:25:44] Speaker 02:
Sure, that's the example that the Veterans Court gave, and also the one that's in footnote six on page 12 of our brief.

[00:25:50] Speaker 02:
That dealt with knee pain.

[00:25:52] Speaker 02:
The diagnostic code for knee pain, I think, which is 5261, is determined in terms of range of motion.

[00:25:58] Speaker 02:
So you could have a knee disability, but if you still have full range of motion, even though there are higher ratings under it, you might be rated at zero.

[00:26:09] Speaker 02:
In other words,

[00:26:11] Speaker 02:
A limited range of motion for a 5261 need disability could be 10%, 20%.

[00:26:15] Speaker 02:
I'm not as familiar, OK?

[00:26:17] Speaker 02:
But if you have full range of motion, you have 0.

[00:26:19] Speaker 02:
In conjunction with 4.59, that would mean you get at least the 10% rating for 5261.

[00:26:27] Speaker 03:
So this interpretation would apply only to diagnostic codes that have both 0 and higher numbers.

[00:26:35] Speaker 02:
Right, or higher numbers that are non-zero.

[00:26:38] Speaker 03:
Well, but if it only has higher numbers that are non-zero, I don't see how 4.59 has any effect at all.

[00:26:44] Speaker 03:
Sure.

[00:26:44] Speaker 03:
Because you get the minimum compensable ratings.

[00:26:47] Speaker 03:
Suppose you had something like the one I was looking at, 52.19, which is 20, 30, or 40.

[00:26:52] Speaker 03:
You would get 20, which is what you would get without PAN.

[00:26:56] Speaker 03:
Yes.

[00:26:56] Speaker 03:
Your argument really only applies to diagnostic codes that have zero and other ratings.

[00:27:04] Speaker 03:
So you're not going to be stuck at zero in those cases.

[00:27:07] Speaker 02:
I mostly agree, Your Honor.

[00:27:08] Speaker 02:
I would suggest that it doesn't fail to apply in those instances.

[00:27:12] Speaker 02:
It just doesn't get you a higher rating because you're already getting one.

[00:27:15] Speaker 02:
OK.

[00:27:16] Speaker 02:
The only thing I would add here.

[00:27:18] Speaker 00:
So your argument is this does have an effect.

[00:27:22] Speaker 00:
It isn't just a precatory provision.

[00:27:24] Speaker 00:
It does have an effect.

[00:27:26] Speaker 00:
But the effect is limited to those situations where the diagnostic code would otherwise give you zero.

[00:27:31] Speaker 00:
Right.

[00:27:31] Speaker 00:
Well, again, the language of the rate.

[00:27:33] Speaker 00:
Did I state that correctly?

[00:27:34] Speaker 00:
Yes, Your Honor.

[00:27:35] Speaker 04:
No.

[00:27:36] Speaker 04:
Really?

[00:27:36] Speaker 04:
Because 5230, the diagnostic code would come under Judge Dyke's definition.

[00:27:42] Speaker 02:
So maybe I misunderstood.

[00:27:46] Speaker 02:
It would arise when I think the problem here is that there are some diagnostic codes that just have a zero rating.

[00:27:54] Speaker 02:
And this regulation is a little harmonizing those is more difficult in that circumstance.

[00:28:00] Speaker 02:
But in general, this is coming in to say, it is the intention of the schedule.

[00:28:03] Speaker 02:
So it's pointing back.

[00:28:04] Speaker 02:
The schedule is the main vehicle.

[00:28:05] Speaker 02:
And that's consistent with Judge Bryson's hypothetical.

[00:28:08] Speaker 02:
The schedule is taking care of it fine.

[00:28:10] Speaker 02:
If the schedule is already providing a 20% rating and there's no 0% rating,

[00:28:15] Speaker 02:
then fine.

[00:28:16] Speaker 02:
But if the schedule does have, for example, a 0% rating and a 10% and a 20%, and you rate it under that code, if you have painful motion, you're at least going to get the 10%.

[00:28:26] Speaker 00:
What it doesn't do is take a code that says... Why doesn't your theory apply to this code, which has no rating?

[00:28:34] Speaker 02:
Because there's no rating at all under this.

[00:28:38] Speaker 02:
Well, it's not that there's no rating at all.

[00:28:39] Speaker 02:
This particular code says no matter, as long as you're correctly rated under this code, and there's no challenge to that here.

[00:28:45] Speaker 02:
That's a point I want to get to after answering this question.

[00:28:48] Speaker 02:
As long as you're under this code, the schedule has said this type of disability, it's zero rating no matter what.

[00:28:56] Speaker 00:
It's important to note here that we are not in a- Give me an example of a different situation where it would impact the rating.

[00:29:05] Speaker 02:
Again, I think the best example is that knee joint code.

[00:29:11] Speaker 04:
Well, what about the, I'm just looking at 5230, so right above it is 5229, index or long finger limitation of motion.

[00:29:19] Speaker 04:
And they have one, the gap that gives you 10% or two, another gap, which gives you zero.

[00:29:27] Speaker 04:
So are you saying that 4.59 operates so that if you have pain, you're going to get the 10% under this?

[00:29:37] Speaker 02:
Correct.

[00:29:38] Speaker 02:
Correct.

[00:29:39] Speaker 04:
And again, it's important.

[00:29:41] Speaker 04:
I mean, the descriptions are quite precise.

[00:29:45] Speaker 04:
So even though you fit within the second of those, which is rated at 0% under 5229, you're going to get 10% because of 4.59?

[00:29:56] Speaker 02:
I suspect so because it's under the same diagnostic code.

[00:30:00] Speaker 02:
Certainly, that's our example under the knee provision.

[00:30:02] Speaker 02:
I'm not as familiar with this provision, but I think that's where we end up.

[00:30:07] Speaker 02:
I think it's important to note here again that we are not in the realm of rating by analogy.

[00:30:11] Speaker 02:
That's never been the argument.

[00:30:13] Speaker 02:
It has never been anyone's argument that this is outside the diagnostic codes.

[00:30:17] Speaker 02:
that no one has challenged that 5230 was the correct diagnostic code.

[00:30:22] Speaker 02:
And in fact, that is an issue that is beyond this court's jurisdiction.

[00:30:27] Speaker 02:
This court's decision in Conway said that the, and the Veterans Court noted this in its decision below, I think it's at page three of the record, that the designation of the correct diagnostic code is an application of law to facts.

[00:30:42] Speaker 02:
and application of a lot of facts under Conway is not reviewable by this court, nor is the rating level, that's a pure factual question, also not reviewable by the court.

[00:30:51] Speaker 03:
So the argument has never been... The interpretation of the regulation is reviewable.

[00:30:54] Speaker 02:
Yes, we agree.

[00:30:55] Speaker 02:
We agree.

[00:30:56] Speaker 02:
But the argument has never been that this is the wrong diagnostic code.

[00:31:00] Speaker 02:
This is the right diagnostic code.

[00:31:01] Speaker 02:
It's not challengeable.

[00:31:02] Speaker 02:
And this diagnostic code provides zero percent.

[00:31:06] Speaker 02:
The argument was, well, 50 to 4.59 should supersede the diagnostic code and cause VA to give Mr. Frazier a rating under other diagnostic codes that everyone agrees are incorrect, the ones that provide for ankylosis or amputation, even though there was a factual finding below that he did not have either ankylosis or amputation.

[00:31:27] Speaker 00:
The idea that... I'm being dense, but I'm not understanding your contention as to the scope of 4.59.

[00:31:37] Speaker 00:
You seem to agree that it has some mandatory, non-prepatory aspects, and you say it doesn't apply to this diagnostic code with a zero rating, but it applies to other diagnostic codes that would result in a zero rating, and jacks those up to 10%.

[00:31:53] Speaker 00:
What's the difference?

[00:31:55] Speaker 02:
I think that it applies to rating levels under a particular diagnostic code.

[00:31:58] Speaker 02:
We don't mean to suggest it's mandatory.

[00:32:00] Speaker 02:
I mean, I think the Veterans Court has recognized that this is prefatory language that provides guidance on how to interpret this.

[00:32:08] Speaker 02:
It provides guidance on how to interpret the codes under the schedule.

[00:32:12] Speaker 02:
The VA recognized that the use of it is the intention of the schedule was conditional language that has to be read in conjunction with and limited by the codes itself.

[00:32:21] Speaker 02:
But what it does is it provides guidance to say, if you're under a code where there are different rating levels, 0, 10%, 20%,

[00:32:29] Speaker 02:
with the code read in conjunction with section 4.59 is probably going to get you to a 10% rating.

[00:32:37] Speaker 02:
For example, if you have pain, again, the knee example.

[00:32:39] Speaker 02:
If you have pain, still have a full range of motion, that can get the VA to 10% because you can treat the pain as

[00:32:49] Speaker 02:
Productive of a 10% disability what it doesn't allow you to do is go to a completely different Diagnostic code and say we need to treat this No, I don't think we I don't think anyone's quoted it but but we we cited the relevant provisions of page What does it say?

[00:33:12] Speaker 02:
uh... my under my understanding of it is that it if there's a full range of motion uh... it's a zero percent rating further limited some limitation of motion provide ratings that are incompatible

[00:33:32] Speaker 02:
Yes, that's what we're saying.

[00:33:33] Speaker 02:
In other words, under the diagnostic code, I'm not saying that's under the diagnostic code.

[00:33:37] Speaker 02:
What I'm saying is, under the diagnostic code, if you have a full range of motion, you're getting 0%.

[00:33:41] Speaker 03:
It seems to me, to come back to the question I asked earlier, that I think everything you're saying is consistent with this characterization of your position.

[00:33:49] Speaker 03:
Tell me if it's not.

[00:33:50] Speaker 03:
Sure.

[00:33:51] Speaker 03:
It seems to me you're saying that the regulation has an effect for a disability that would fall under a diagnostic code

[00:34:01] Speaker 03:
that has both zero and other compensable levels.

[00:34:07] Speaker 03:
Otherwise, it would have no effect.

[00:34:10] Speaker 03:
Now, my question is, is that true if it has like 20%, 30%, 40%, and so forth, but no zero?

[00:34:19] Speaker 03:
Would you always get 20%?

[00:34:21] Speaker 03:
Or would you get 20% plus some optional increase?

[00:34:26] Speaker 02:
No, we very much disagree.

[00:34:28] Speaker 02:
I mean, this is the first time I've heard that theory from appellants that it provides kind of a 10% add-on to the minimum.

[00:34:34] Speaker 02:
Right, right.

[00:34:35] Speaker 03:
OK, you say that's not true.

[00:34:37] Speaker 03:
Am I correct in thinking then that the operation of this regulation is limited in effect, in practical effect, to only those cases in which there is both a zero and some higher compensable level?

[00:34:53] Speaker 02:
Yes, I think the key word is there in practical effect.

[00:34:56] Speaker 02:
I think that in the case where there's, say, a minimum of 20% and no zero, that 4.59 and the diagnostic code would be in harmony.

[00:35:07] Speaker 02:
So there would be no practical effect.

[00:35:09] Speaker 02:
But that's also consistent with the regulation, because the regulations language itself is just talking about the intention of the schedule.

[00:35:15] Speaker 02:
So if the schedule is already accomplishing what the regulation is saying,

[00:35:21] Speaker 02:
is our intention, then there's nothing for it to do.

[00:35:23] Speaker 04:
And the language you refer to in 4.59 is as entitled to at least the minimal compensable rating for the joint.

[00:35:31] Speaker 04:
So you're saying when there is a minimal compensable rating for the joint, you're entitled to at least that, which is consistent with both answers to Judge Bryce's question.

[00:35:40] Speaker 02:
Yes.

[00:35:41] Speaker 02:
Yes.

[00:35:41] Speaker 02:
Yes.

[00:35:42] Speaker 03:
And it would be a lot clearer, I guess we can all agree, if this regulation, instead of saying for the joint, had said,

[00:35:50] Speaker 03:
within the diagnostic code for the particular disability suffered by the veteran?

[00:35:57] Speaker 02:
I agree, Your Honor.

[00:35:57] Speaker 03:
Nonetheless, it is- Has anybody given any thought to perhaps changing that?

[00:36:03] Speaker 02:
Well, that's well beyond my pay grade, Your Honors.

[00:36:05] Speaker 02:
But I will say, and to sum things up, that that's why generally courts, including this court, the Supreme Court, read regulations and statutes in conjunction with the broader regulatory scheme

[00:36:17] Speaker 02:
And in fact, in some sense, your honor's last question relates to this court's most recent decision in, I think it was called Martina's Bodin, which further clarified Saunders, which simply made clear that when you're dealing with a situation where you're not outside the schedule, but the court said, look, we understand what we're doing in Saunders, that disability

[00:36:43] Speaker 02:
that pain can constitute a disability under section 1114.

[00:36:48] Speaker 02:
But here we have a rating that applies.

[00:36:50] Speaker 02:
And so we're going to apply those ratings and not go beyond that.

[00:36:54] Speaker 02:
And that's consistent with what we are asking here.

[00:36:57] Speaker 02:
Again, there's no challenge that 5230 was the correct rating.

[00:37:01] Speaker 02:
And even if there was, that would be beyond this court's jurisdiction.

[00:37:05] Speaker 02:
And so here when 5230 says there's no compensable rating level under this at all,

[00:37:13] Speaker 02:
The best way to interpret the regulation is you get the minimum under the diagnostic code.

[00:37:17] Speaker 02:
The minimum and maximum under the diagnostic code is zero.

[00:37:20] Speaker 02:
VA has just recognized that the fourth and fifth fingers, a disability in those fingers is not productive of the type of disability that requires confidence.

[00:37:40] Speaker 01:
And please, court, what is most troubling about what you heard from the government is that they are not defending their own regulation.

[00:37:48] Speaker 01:
The secretary wrote this regulation.

[00:37:51] Speaker 01:
The secretary provides, as he is supposed to, for the extraordinary circumstances for veterans who are injured.

[00:37:59] Speaker 01:
And he said unambiguously that there shall be, the veteran shall be entitled to at least the minimum compensable rating for the joint.

[00:38:10] Speaker 01:
He has two joints, two fingers that meet that criteria, and he gets a 0% rating.

[00:38:17] Speaker 01:
That can't possibly be the correct interpretation of 4.59.

[00:38:25] Speaker 01:
The secretary says to you, but he doesn't have ankylosis.

[00:38:29] Speaker 01:
He doesn't have limitation of motion.

[00:38:31] Speaker 01:
What he has is painful motion.

[00:38:34] Speaker 01:
So this diagnostic code doesn't apply.

[00:38:44] Speaker 01:
Yes, because this regulation defined painful motion as a disability.

[00:38:51] Speaker 01:
And under 1110 and 1131, a disability is compensable.

[00:38:57] Speaker 01:
Not non-compensable, but compensable.

[00:39:00] Speaker 00:
The whole purpose of the rating schedule is to compensate people for functional disabilities.

[00:39:09] Speaker 00:
In Saunders' case, which we discussed earlier,

[00:39:12] Speaker 00:
Because that's what the regulation says, that it is productive of a disability.

[00:39:28] Speaker 01:
A disability is compensable.

[00:39:31] Speaker 01:
If it wasn't a disability, it could not be compensable under 1110 or 1131.

[00:39:41] Speaker 01:
because the Secretary made a decision in the regulation he wrote that every

[00:39:51] Speaker 01:
joint that has painful motion is entitled to at least the minimum compensable rating.

[00:39:59] Speaker 01:
And that was the language unambiguously used by the secretary.

[00:40:03] Speaker 01:
And the secretary can't walk away from that language by saying that there are other circumstances in which this would apply.

[00:40:10] Speaker 01:
This is when it applies.

[00:40:14] Speaker 01:
And this veteran was entitled to

[00:40:16] Speaker 01:
a minimum compensable rating for each of his two joints.

[00:40:21] Speaker 01:
I want to switch further questions from the panel.