[00:00:00] Speaker 02:
Our next appeal for the morning is appeal number 22-1243, Webb versus McDonough.

[00:00:04] Speaker 02:
Ms.

[00:00:05] Speaker 02:
Neely, whenever you're ready.

[00:00:15] Speaker 00:
Mr. Webb was an Army Infantry Patrol leader in Vietnam.

[00:00:20] Speaker 00:
And his troops often came under attack, and he received two Bronze Stars for gallantry in Vietnam because of his actions.

[00:00:28] Speaker 00:
Among other things, he service connected for diabetes, prostate cancer, and ED.

[00:00:34] Speaker 00:
His ED rating is a 0%.

[00:00:38] Speaker 00:
And he appealed that to the Veterans Court.

[00:00:41] Speaker 00:
But the court ruled that an analogous rating, when it was rated analogously, it required him to fit perfectly into the 7522 diagnostic criteria.

[00:00:56] Speaker 00:
And 4.20 says, when a condition is not listed, it should be rated by analogy.

[00:01:02] Speaker 00:
And that analogy needs to be something that's closely related to location, function, and systems.

[00:01:10] Speaker 00:
The rating schedule didn't list ED at the time Mr. Webb was rated.

[00:01:16] Speaker 00:
But it listed penile deformity.

[00:01:17] Speaker 00:
So that's how they got 7522 to rate him, as an analogous rating.

[00:01:25] Speaker 00:
So they applied 4.20, and they rated him analogously to penile deformity.

[00:01:30] Speaker 00:
He has no deformity.

[00:01:33] Speaker 00:
If he had a deformity, he would fit perfectly under the rating criteria.

[00:01:38] Speaker 00:
So we have to rate him by analogy.

[00:01:40] Speaker 01:
So your argument, as I understand it, is that that can't possibly be correct, because otherwise, he would have just sought to be rated under 4.20, I mean, not under the

[00:01:53] Speaker 01:
under their disability rating directly as opposed to being analogously.

[00:01:57] Speaker 00:
Yes, Your Honor.

[00:01:59] Speaker 01:
I have a question.

[00:01:59] Speaker 01:
Did anybody ever look through the RO or the Board of the Veterans Court, did they ever do any sort of more thorough analysis or analysis at all of the Lindemann factors of closely analogous functions and anatomical localization and symptomatology?

[00:02:18] Speaker 01:
I didn't see where that had been done.

[00:02:20] Speaker 00:
I don't recall that that happened, Your Honor.

[00:02:24] Speaker 02:
So all the way through, through the Veterans Court, the BVA, and the R.O., everyone just looked and saw whether there was P.M.O.P.

[00:02:33] Speaker 02:
or any comment was known, and then that was the end of the matter under the rating by analogy analysis?

[00:02:39] Speaker 00:
In this case.

[00:02:42] Speaker 00:
But the problem we've noticed is in the court, the Veterans Court, is using Stankovitch for the proposition

[00:02:54] Speaker 00:
that when the VA rates by analogy, it's not required to exhibit all the criteria of the analogous rating.

[00:03:01] Speaker 00:
So some of the judges of the Veterans Court are using this and saying, we have to send it back, because you didn't rate by analogy.

[00:03:11] Speaker 00:
You required the things that are in the rating code.

[00:03:16] Speaker 02:
Is that decisions like Ellis?

[00:03:18] Speaker 02:
I'm sorry?

[00:03:19] Speaker 00:
Decisions like Ellis?

[00:03:20] Speaker 00:
Yes.

[00:03:22] Speaker 00:
And then other judges, depending on what they

[00:03:24] Speaker 00:
What they are saying, no, you have to have all of them.

[00:03:27] Speaker 00:
So we have a split at the court, at the Veterans Court.

[00:03:30] Speaker 02:
I've never seen a reading by analogy cases.

[00:03:33] Speaker 02:
Are they common?

[00:03:35] Speaker 00:
Yes, because there's.

[00:03:37] Speaker 02:
Is there anything in the manual that describes how the VA examiner should follow through on evaluating

[00:03:46] Speaker 02:
the lead-in factors, and then what degree that a claimant would nevertheless have to meet all of the criteria of a given rating to successfully be receiving benefits under a rating by analogy.

[00:04:03] Speaker 00:
I'm not sure what the manual says, Your Honor, but I can look that up and get back to you.

[00:04:08] Speaker 02:
I'll ask the government.

[00:04:11] Speaker 01:
To your knowledge, is then the real major source of law here, the regulation 4.20?

[00:04:18] Speaker 01:
Is that what we have and maybe some cases that expound upon the requirements there?

[00:04:26] Speaker 00:
Yes.

[00:04:26] Speaker 00:
So we're asking that the court apply the law in 4.20 and hold that a deformity is not necessary.

[00:04:35] Speaker 00:
Because if you do away with the analogy, then

[00:04:40] Speaker 00:
4.20 has no meaning.

[00:04:43] Speaker 00:
And if we're rating strictly under the criteria, then you've

[00:04:48] Speaker 00:
There's no analogy.

[00:04:49] Speaker 00:
It's the thing.

[00:04:50] Speaker 01:
Looking at the regulation, I mean, do you think, what's your argument for what's required?

[00:04:55] Speaker 01:
Would you say that the only thing that's required is that you show that there is analogous functions, analogous anatomical localization, and analogous symptomatology?

[00:05:06] Speaker 01:
And then once that's satisfied and any other requirements of the provision, the regulation's satisfied.

[00:05:13] Speaker 01:
That's it.

[00:05:13] Speaker 01:
You just rate.

[00:05:14] Speaker 01:
based on whatever the disability criteria, not the criteria, but whatever that category is.

[00:05:20] Speaker 01:
So here, it would be 20%.

[00:05:22] Speaker 01:
So we show your analogous under the regulation.

[00:05:26] Speaker 01:
And therefore, there's no further work to be done.

[00:05:28] Speaker 01:
And instead, you just get 20%.

[00:05:30] Speaker 01:
Is that what your position is?

[00:05:32] Speaker 00:
Our position is the VA compensates for functional loss.

[00:05:37] Speaker 00:
So our analogy here is ED equals the deformity, because that is the diagnosis.

[00:05:44] Speaker 00:
And then the symptom that they're trying to find common symptomology is the lack of, or is the, why can't I think of it?

[00:05:57] Speaker 00:
So that's basically the inability to receive, having an erection.

[00:06:02] Speaker 00:
There we go, I'm sorry.

[00:06:04] Speaker 02:
Do you think the code should be read as PD caused by penile deformity?

[00:06:13] Speaker 02:
Or do you think that there are almost two independent issues?

[00:06:18] Speaker 02:
One, penile deformity, two, lack of erection power.

[00:06:24] Speaker 00:
We read it as penile deformity is the diagnosis.

[00:06:31] Speaker 00:
And then lack of erection is the symptom, lack of erectile power.

[00:06:37] Speaker 00:
And then ED takes the place of that diagnosis in the analogy.

[00:06:42] Speaker 00:
And then it looks at the symptoms to see if they have that.

[00:06:47] Speaker 00:
So you could have a penile deformity without the loss of power.

[00:06:51] Speaker 00:
And then underneath the actual rating code, then you wouldn't get the 20%.

[00:07:00] Speaker 00:
You would get the 0%.

[00:07:01] Speaker 02:
Could they both be considered symptoms?

[00:07:07] Speaker 00:
In that part of the rating code,

[00:07:11] Speaker 00:
4.115B, it talks about things under a diagnosis.

[00:07:21] Speaker 00:
4.115A has just symptoms under that body system.

[00:07:30] Speaker 00:
So this 7522 is under 4.115B.

[00:07:37] Speaker 02:
I guess I'm wondering, under the lead-in factors, whether the VA could say, well, maybe you don't have to have both of these criteria of penile deformity and loss of erection power.

[00:07:57] Speaker 02:
But under the lead-in factors, you have to have something closely analogous to each of those.

[00:08:05] Speaker 02:
Would that be an incorrect understanding of the lending factors?

[00:08:12] Speaker 00:
The way Lenderman works, in my understanding, is it's a balancing test.

[00:08:17] Speaker 00:
They say, we need to rate you because it's not listed by something that's closely analogous.

[00:08:24] Speaker 00:
And they say, can we find something that's closely in the location of the body?

[00:08:28] Speaker 00:
Can we find something that's close in function?

[00:08:31] Speaker 00:
And we find something in symptoms.

[00:08:34] Speaker 00:
And then they try to figure out what is the best fit under the listed criteria.

[00:08:42] Speaker 01:
It sounds like you're saying, and I'm sorry to interrupt you, but it sounds like you're saying we need to rate you by analogy.

[00:08:51] Speaker 01:
But I thought that the regulation itself says it will be permissible to rate if certain conditions are satisfied.

[00:09:00] Speaker 00:
Yes, it says.

[00:09:01] Speaker 01:
So in other words, it could be that somebody gets a rating of zero because there isn't an analogous provision to rate them under, right?

[00:09:12] Speaker 00:
I haven't seen that, Your Honor.

[00:09:14] Speaker 02:
Are you saying every unlisted condition has to go through a rating by analogy analysis?

[00:09:21] Speaker 02:
Yes.

[00:09:22] Speaker 02:
And then the VA is required under the rule to pick a listed condition as

[00:09:30] Speaker 02:
had the deemed most closely analogous condition to the unlisted condition?

[00:09:34] Speaker 00:
Yes.

[00:09:37] Speaker 02:
Where does it say that?

[00:09:39] Speaker 00:
We read that at 4.20 combined with Lindemann.

[00:09:46] Speaker 01:
Combined with what?

[00:09:47] Speaker 01:
Lindemann.

[00:09:48] Speaker 01:
But Lindemann is simply expounding about 4.20.

[00:09:52] Speaker 01:
I mean, 4.20 is the regulation that addresses reading by analogy, right?

[00:09:58] Speaker 01:
Right.

[00:09:59] Speaker 01:
Lindemann just interprets it.

[00:10:00] Speaker 01:
Right.

[00:10:01] Speaker 02:
4.20 doesn't say where there's an unlisted condition that we must do a reading by analogy and must consider the following factors.

[00:10:12] Speaker 02:
So maybe it's more permissive than mandatory.

[00:10:16] Speaker 02:
at least under the plain language of 4.20.

[00:10:20] Speaker 00:
Right.

[00:10:21] Speaker 00:
The only problem we have right now that that is, well, not the only problem, but the problem we have is that the Veterans Court, the decisions are coming out capriciously because we have one judge one day uses Stankovitch and another judge the other day doesn't.

[00:10:39] Speaker 00:
And so now you have two veterans with

[00:10:42] Speaker 00:
the same symptoms in the same condition, and they're getting totally different answers.

[00:10:46] Speaker 01:
So what you're asking for this court to do is to say the regulation has to be satisfied.

[00:10:53] Speaker 01:
Yes, ma'am.

[00:10:54] Speaker 01:
And then once the regulation is satisfied, if it is, if you determine it's satisfied, then you shouldn't be imposing the criteria in the analogous rating that you're relying on.

[00:11:08] Speaker 01:
You shouldn't be imposing that criteria

[00:11:11] Speaker 01:
on in order to prevent someone from receiving compensation, right?

[00:11:18] Speaker 01:
I mean, in other words, you determine whether the functions are effective.

[00:11:24] Speaker 01:
The anatomical localization and symptomatology are closely analogous.

[00:11:28] Speaker 01:
There's a couple other sentences in that regulation.

[00:11:30] Speaker 01:
If all of that is satisfied, the end.

[00:11:33] Speaker 01:
The veteran receives the benefits.

[00:11:35] Speaker 01:
It's analogous, right?

[00:11:36] Speaker 00:
Right, we're just asking them not to strictly apply the criteria to a condition that's not that condition.

[00:11:43] Speaker 01:
What about in this case?

[00:11:44] Speaker 01:
I mean, we can't say whether those conditions are satisfied, because it doesn't appear to us as if anybody has actually analyzed the Lenderman factors here.

[00:11:55] Speaker 00:
So that's why we're asking the court to remand it back to the board for them to properly apply 4.20.

[00:12:01] Speaker 00:
OK.

[00:12:05] Speaker 00:
All right.

[00:12:12] Speaker 03:
It pleased the court.

[00:12:14] Speaker 03:
VA has never rated loss of erectile power alone for disability compensation.

[00:12:19] Speaker 03:
It's never done it.

[00:12:21] Speaker 03:
And there's a very good reason for that, because erectile power is not necessary for performance of daily job duties.

[00:12:25] Speaker 03:
The disability compensation system is meant to provide supplemental income to veterans who are suffering from service-connected impairments from their ability to work.

[00:12:35] Speaker 02:
And as is evident- Is it really just a work impairment issue?

[00:12:40] Speaker 02:
when it comes to benefits?

[00:12:42] Speaker 03:
When it comes to disability compensation.

[00:12:44] Speaker 02:
Disability compensation, right.

[00:12:46] Speaker 02:
Well, I mean, the code that we're looking at, 7522, I don't see anything in that code that I would think is normally related to, you know,

[00:12:59] Speaker 02:
impairment of your ability to work.

[00:13:01] Speaker 03:
Well, it's an interesting question, Your Honor.

[00:13:02] Speaker 03:
The VA appears to agree with you now, because subsequent to this case, in November 2021, you now have a new diagnostic code that says... Well, the code was what it was, and it only said penile deformity and lack of erection power.

[00:13:17] Speaker 02:
And I don't think you could be credible and said that that kind of condition is directly related to the impairment of someone's ability to work.

[00:13:26] Speaker 03:
I think that's right, Your Honor, and I think that's what the VA's current judgment is.

[00:13:35] Speaker 02:
through the entire codes of the diagnostic code and conclude every single time, every single one of these rated conditions is necessarily related to functional work impairment.

[00:13:48] Speaker 02:
So can you just move off of that for the time being and try to explain to us why the Lindemann factors were not being applied?

[00:13:58] Speaker 03:
Well, Your Honor, he was rated by analogy to this condition.

[00:14:02] Speaker 02:
Right, and when you do it written by analogy, you're supposed to use the Lindemann factors, aren't you?

[00:14:08] Speaker 02:
Or are they just optional?

[00:14:10] Speaker 02:
They're just sort of like a freestyle thing that you don't really have to use.

[00:14:15] Speaker 03:
Well, I believe that there wasn't any contest as to whether this was the correct diagnostic code.

[00:14:20] Speaker 03:
All the parties agreed that this was the right diagnostic code to apply.

[00:14:23] Speaker 01:
So in other words, it's your view that there was a determination that regulation 4.20 was satisfied as regards whether the function affected anatomical localization in symptomatology are closely analogous?

[00:14:38] Speaker 03:
Well, it appears that that's what the VA did.

[00:14:40] Speaker 03:
The VA rated him by analogy here, and then determined that he was required to have both mandatory criteria, but did not satisfy them.

[00:14:48] Speaker 02:
OK, so wait a second.

[00:14:50] Speaker 02:
It sounds like you are agreeing with Judge Stoll that all the Lindemann factors we can infer have been satisfied here.

[00:15:01] Speaker 02:
And then if we were to conclude that that's actually all that is required,

[00:15:07] Speaker 02:
to do a rating by analogy, and you don't need to go further and then actually prove that the claimant has each of the criteria for the rating itself, then they should win.

[00:15:23] Speaker 02:
There's no remand.

[00:15:24] Speaker 03:
No, Your Honor.

[00:15:27] Speaker 03:
With respect to the selection of the criteria, yes, we all agree that that's the correct selection of the criteria.

[00:15:33] Speaker 03:
But rating by analogy, in almost every case, you do have to satisfy all of the criteria.

[00:15:38] Speaker 01:
What if we disagree with that?

[00:15:39] Speaker 01:
I mean, we haven't addressed this issue.

[00:15:41] Speaker 01:
This is an issue of first impression for us.

[00:15:43] Speaker 01:
So what if we disagree with you?

[00:15:44] Speaker 01:
If we look at the regulation, we don't see where it says that.

[00:15:47] Speaker 01:
Instead, it says that it's permissible to do it when this function, localization, and symptomatology are closely analogous.

[00:15:57] Speaker 01:
And you're saying that's already satisfied.

[00:15:59] Speaker 03:
No, no.

[00:16:00] Speaker 03:
So maybe I misspoke, or maybe what I'm saying is being misinterpreted.

[00:16:03] Speaker 03:
I apologize.

[00:16:05] Speaker 03:
I don't know.

[00:16:06] Speaker 03:
As you pointed out before, neither party has been able to show any evidence from the record about the liniment factors being interpreted here by the board.

[00:16:12] Speaker 03:
And I can't speculate with you.

[00:16:14] Speaker 03:
There's certainly a very good argument.

[00:16:15] Speaker 03:
It certainly wouldn't be an arbitrary and precarious decision for the VA to say, well, this isn't close in symptomatology.

[00:16:21] Speaker 03:
We've got two criteria.

[00:16:22] Speaker 03:
You satisfy one.

[00:16:23] Speaker 03:
You're missing one of the key criteria.

[00:16:25] Speaker 03:
Anatomic localization does appear to be similar.

[00:16:28] Speaker 03:
But function, maybe yes, maybe no, depending on what the deformity is, what functions it might be tied to aside from loss of erectile power.

[00:16:35] Speaker 01:
I'll remind you, they haven't done that yet.

[00:16:37] Speaker 01:
Or have they done that?

[00:16:39] Speaker 01:
Just a few minutes ago, you said they'd already determined

[00:16:42] Speaker 03:
No, I did not mean to state that.

[00:16:44] Speaker 03:
What I'm saying is that the selection of the criteria was not in contest.

[00:16:47] Speaker 03:
I don't have evidence from the record regarding the interpretation of Lindemann factors, just as the appellant did not either.

[00:16:54] Speaker 01:
What about the existence of prior cases?

[00:16:56] Speaker 01:
There are some prior cases where somebody presented with erectile dysfunction.

[00:17:02] Speaker 01:
They were rated analogously under this diagnostic code.

[00:17:07] Speaker 03:
Well, even this case, he was rated analogously under this diagnostic code, but assigned a 0% rating for failure to satisfy the criteria.

[00:17:15] Speaker 03:
There are many different single-judge cases that's true.

[00:17:17] Speaker 03:
And I agree with you.

[00:17:18] Speaker 01:
And some in which the person was rated under the diagnostic code and received compensation.

[00:17:25] Speaker 03:
I don't know that any of the cases they set up that they'll be able to speak better.

[00:17:29] Speaker 03:
I don't believe that any of the cases reported the result.

[00:17:31] Speaker 03:
I will say that after review of their reply briefs and looking at them, those cases do support their position.

[00:17:38] Speaker 03:
The single judge cases, they did say, yes, you can go down and see if you can rate by analogy this.

[00:17:43] Speaker 03:
I don't know that the briefs showed those cases final result.

[00:17:47] Speaker 03:
Were they compensated or not?

[00:17:48] Speaker 03:
I don't have that information.

[00:17:49] Speaker 03:
But there are single judges.

[00:17:51] Speaker 03:
The VA, as they say, we agree with their position that the Veterans Court has not spoken with one voice on this.

[00:17:57] Speaker 03:
And even the cases before you are a bit confusing.

[00:17:59] Speaker 02:
For instance.

[00:18:00] Speaker 02:
Is there something in the manual?

[00:18:01] Speaker 02:
There's clearly nothing in the regulation.

[00:18:03] Speaker 02:
But is there something in the manual that tells us that you have to satisfy the elements of 4.20 and you also have to satisfy all of the rating criteria to which you are analogizing to in order

[00:18:19] Speaker 02:
We searched for this year, but no one found anything helpful at this point.

[00:18:26] Speaker 02:
All that we have from the government right now is you telling us that this is how written by analogy works or

[00:18:35] Speaker 03:
Well, I think there's also evidence from the plain language of the regulations we've already gone over, but also the regulatory scheme.

[00:18:43] Speaker 03:
Remember that rating by analogy is taking place against the backdrop of a comprehensive dictionary of diagnostic codes.

[00:18:49] Speaker 03:
And those diagnostic codes are meant to cover every possible type of impairment.

[00:18:53] Speaker 03:
They represent the VA's considered judgment about all of these different types of impairing functions, and there are quite a few.

[00:18:59] Speaker 02:
But there's nothing in the statute that requires you to have analogous ratings, is that right?

[00:19:05] Speaker 03:
No, I think the statute says that the schedule should be used as far as practical, and that is where 4.20 comes out.

[00:19:11] Speaker 02:
And so the VA has, in its discretion, created this analogous rating scheme.

[00:19:19] Speaker 02:
And so it's given us what it could give us in terms of understanding how to follow an analogous rating scheme through the content of 4.20.

[00:19:31] Speaker 02:
Yeah, sure.

[00:19:32] Speaker 02:
And 4.20 right now, I don't see anything

[00:19:35] Speaker 02:
in there that demands that we go through the entire rating criteria analysis, as if the person was actually trying to apply for that very specific rating.

[00:19:48] Speaker 01:
Also, I just want to say your position doesn't make any sense, because I don't know how.

[00:19:52] Speaker 01:
Please tell me how somebody would ever be successful in a rating by analogy if they have to actually satisfy the reading criteria.

[00:20:00] Speaker 01:
If they had to satisfy the rating criteria, they wouldn't have to read by analogy.

[00:20:04] Speaker 03:
Well, for instance, we talked about some of these examples in preparing for this.

[00:20:10] Speaker 03:
There are many conditions which are not covered by the diagnostic code.

[00:20:13] Speaker 03:
One, for instance, that came up was chondromalacia patella.

[00:20:18] Speaker 03:
It's a particular knee condition.

[00:20:20] Speaker 03:
And that condition is not rated.

[00:20:21] Speaker 03:
Is this a pure brute?

[00:20:22] Speaker 03:
No, no, no.

[00:20:23] Speaker 02:
I mean, that's one thing that confuses me.

[00:20:27] Speaker 02:
I've been seeing the brutes in examples of how this actually operates.

[00:20:30] Speaker 03:
Understood.

[00:20:31] Speaker 03:
I can present one now.

[00:20:33] Speaker 03:
And so the way this chondromalacia patella condition is rated is it ends up rated by analogy because there is no diagnostic code coverage for it.

[00:20:42] Speaker 03:
And so they rate it under conditions that deal with the flexion and extension of the knee.

[00:20:48] Speaker 03:
And so the veteran still satisfies all of the criteria, still has to satisfy the criteria in order to qualify for the disability compensation rating.

[00:20:58] Speaker 03:
So the cases where a veteran would not satisfy every criteria must, by definition, be extremely unique and rare.

[00:21:06] Speaker 03:
Like, for instance, the Stankiewicz case that the party's banning about in the briefs.

[00:21:10] Speaker 03:
This is a very strange case where the person had an undiagnosable illness.

[00:21:13] Speaker 03:
No medical professional could figure out what this cluster of symptoms

[00:21:19] Speaker 03:
what condition it actually was tied to.

[00:21:22] Speaker 03:
And so what they did was they said, well, everyone agrees that it's service-connected.

[00:21:26] Speaker 03:
So rate him by analogy.

[00:21:28] Speaker 03:
And then the particulars of that case were that the VA said, well, this diagnostic criteria requires a diagnosis of arthritis.

[00:21:35] Speaker 03:
And we can't diagnose him with arthritis.

[00:21:37] Speaker 03:
So the VA said, well, that's an error, because if he has an undiagnosable condition and you need a diagnosis,

[00:21:44] Speaker 03:
Perhaps here would be a place where he doesn't meet a single criteria.

[00:21:48] Speaker 03:
But those cases have to be rare.

[00:21:50] Speaker 03:
Otherwise, it's going to blow a hole in the side of the diagnostic criteria.

[00:21:53] Speaker 03:
Because every veteran can come up with a garden variety diagnosis of a very common illness, like erectile dysfunction, and say, well, you have to cover it now.

[00:22:01] Speaker 03:
Even though your judgment is you don't cover it, you now have to cover it because it's here.

[00:22:05] Speaker 02:
Nobody has said you have to cover it.

[00:22:08] Speaker 02:
But the argument is you have to apply the elements of 4.2 up.

[00:22:14] Speaker 02:
That's all.

[00:22:15] Speaker 02:
And if it meets all the criteria of 4.20, then they get to succeed in an analogous rating.

[00:22:24] Speaker 02:
And that's the setup that the VA chose when it wrote the rule the way it wrote it.

[00:22:29] Speaker 03:
Yes, Sharon.

[00:22:29] Speaker 03:
Of course, there's an argument here that they didn't satisfy 4.20 at all.

[00:22:34] Speaker 03:
But again, we don't have the evidence of the liniment factor application before you.

[00:22:41] Speaker 02:
Penile deformity would be something that would be analyzed under functions affected or symptomatology.

[00:22:50] Speaker 03:
I'm not a medical professional, so I can't speak to that.

[00:22:52] Speaker 03:
I can't exclude the possibility that it also includes functions.

[00:22:57] Speaker 03:
But because I'm not a doctor, I can tell you for sure.

[00:23:01] Speaker 03:
But whether it would be analyzed under just symptoms or just function, you could imagine functions that are not just erectile power, but which a penile deformity could impair.

[00:23:11] Speaker 03:
For instance, the penises used to urinate.

[00:23:20] Speaker 01:
Do you have any other arguments for why it is that we shouldn't just interpret section 4.20 as it's written, which is to say that once you satisfy these requirements, then you just rate by analogy.

[00:23:40] Speaker 03:
That may be right, Your Honor, but satisfying does not necessarily.

[00:23:44] Speaker 03:
Once you rate by analogy, you then have to go through the rating of the criteria to rate by it.

[00:23:49] Speaker 01:
I know.

[00:23:49] Speaker 01:
I'm having a hard time understanding your legal basis for saying that you have to go through the criteria.

[00:23:56] Speaker 03:
Because when the analogy is made to a particular diagnostic criteria, 4.20 does not require the VA to cast aside or permit a veteran to discard any criteria the veteran doesn't satisfy.

[00:24:11] Speaker 03:
I can leave the balance of my time.

[00:24:18] Speaker 03:
I'll just leave with one point that I mentioned before.

[00:24:21] Speaker 02:
Are there actual examples

[00:24:25] Speaker 02:
the VA granting compensation under a rating by analogy that you're aware of.

[00:24:32] Speaker 02:
I know you have this knee condition hypothetical, but I guess what I'm wondering is, number one, how common are these types of ratings granted?

[00:24:41] Speaker 02:
And number two, can you give me some examples of what they actually look like?

[00:24:46] Speaker 03:
Well, as I said, you're under the Stankevich case as a paradigm example of where you have a case

[00:24:52] Speaker 03:
of a veteran who has an undiagnosable condition.

[00:24:54] Speaker 03:
But by nature, they should be rare, because the comprehensive diagnostic code should be covered.

[00:24:59] Speaker 01:
In that case, Dan Kevich, the rating occurred without satisfaction of all the rating criteria.

[00:25:09] Speaker 03:
That's correct, Jan.

[00:25:11] Speaker 03:
OK.

[00:25:11] Speaker 03:
Of the authorized type.

[00:25:12] Speaker 01:
All I understand is you're saying that shouldn't happen in this case.

[00:25:15] Speaker 01:
But I think all of the arguments you're making here could be satisfied in looking at whether the symptomatology

[00:25:23] Speaker 01:
or one of the other criteria of the Lindemann factors as satisfied or not, functionality and symptomatology, right?

[00:25:33] Speaker 03:
Understood, Your Honor.

[00:25:34] Speaker 03:
I'll just simply make one more point, which is that there is no doubt that the VA considered the symptom of loss of erectile power and erectile dysfunction and made a considered judgment about whether it's covered for disability or not.

[00:25:46] Speaker 03:
And instead what it did, instead of

[00:25:48] Speaker 03:
Instead of ever covering it for disability compensation, it tied it and married it to another mandatory criteria in the presence of a penile deformity.

[00:25:57] Speaker 03:
And so to allow a rating by analogy to skip over that judgment of the VA removes its policy discretion given to it under 38 UFC 1155 to state and apply or to create and apply a schedule of ratings.

[00:26:13] Speaker 02:
You're not making an hour-deference argument about how we should read 4.20 to include certain requirements.

[00:26:19] Speaker 03:
I'm not making an hour-deference argument, Your Honor.

[00:26:21] Speaker 02:
Certainly not.

[00:26:23] Speaker 02:
And just quickly, is it your understanding that whenever there's an unlisted condition for which someone is applying for compensation, the VA must always try to do a written by analogy analysis?

[00:26:41] Speaker 03:
It appears that 4.20 is a permissive language.

[00:26:45] Speaker 03:
But looking at the decision here in full candor, it does appear that's how the Veterans Court expected the topic, even in this decision of denying Mr. Williamson.

[00:26:54] Speaker 02:
So is that the way that VA actually does it, that it always conducts the written by analogy analysis?

[00:27:02] Speaker 03:
I can't speak to how the VA always does it.

[00:27:04] Speaker 03:
But I believe it has the permission to not do it.

[00:27:07] Speaker 03:
But it does appear that the Veterans Court said, in the second line of the decision, states that this was an unlisted condition.

[00:27:15] Speaker 03:
So therefore, they rated by analogy.

[00:27:18] Speaker 03:
It took for granted that that was the case.

[00:27:20] Speaker 02:
Thank you.

[00:27:30] Speaker 00:
Your Honors, the VA rates, it compensates for the functional loss.

[00:27:37] Speaker 00:
And that's under Saunders.

[00:27:39] Speaker 00:
And it says they have to compensate for this functional loss.

[00:27:44] Speaker 00:
Here, Mr. Webb has a functional loss.

[00:27:47] Speaker 00:
He can't have an erection.

[00:27:49] Speaker 00:
And the ED took the place of the deformity because it's under a diagnosis.

[00:27:58] Speaker 00:
So he meets the factors because it's by analogy.

[00:28:01] Speaker 00:
Otherwise, it doesn't make any sense.

[00:28:06] Speaker 00:
So we just ask the court to hold that Mr. Webb does not require deformity, and he's not necessarily to get the 20%.

[00:28:15] Speaker 00:
And I will leave you.

[00:28:17] Speaker 02:
We're only in the alternative.

[00:28:19] Speaker 02:
You want us to vacate and remit for the board in the first instance to conduct a rendering factor.

[00:28:26] Speaker 00:
to properly apply 4.20 and I will actually leave you with in the conclusion of Williams the Veterans Court actually said it warned that if the VA when it sent it back down found that Mr. Williams did not have a

[00:28:52] Speaker 00:
internal deformity, then they had to reconcile how they were rating by analogy and requiring a perfect fit under the diagnostic.

[00:29:06] Speaker 00:
So barring your further questions.