[00:00:01] Speaker 01: The next case is Daniel Barry, Secretary of Veterans Affairs, 2022-1747. [00:00:40] Speaker 04: That's perfect. [00:00:44] Speaker 04: Thank you, Your Honor. [00:00:50] Speaker 04: Good morning, Your Honors. [00:00:51] Speaker 04: May it please the Court. [00:00:53] Speaker 04: The Veterans Court majority erred in its interpretation of 38 USC 1114-P that's accompanying regulation 38 CFR 3.35 [00:01:04] Speaker 04: by limiting Mr. Berry to one half-death increase in his special monthly compensation rate. [00:01:12] Speaker 04: Neither the text of the statute or regulation expressly limits the veteran to only one half-death increase. [00:01:19] Speaker 04: The only expressed cap in the statute and regulation is SMC level O. Yet the Veterans Court majority reads in a further limitation. [00:01:29] Speaker 04: And in doing so, it uses the same reasoning regarding the language of the statute and regulation that this court has already rejected in Cersei versus Geek. [00:01:38] Speaker 04: In Cersei, this court held that the use of singular terms and the disjunctive or did not limit a veteran to one clothing allowance if that veteran qualified for more through his condition. [00:01:52] Speaker 04: The same reasoning should also apply here, and the veteran does not, or the secretary does not provide a response for Cersei in its brief. [00:02:02] Speaker 03: What is your view of the impact of the veterans' camp in New Renewal? [00:02:07] Speaker 04: So it is our opinion that once the Veterans Court majority decided that the actual text of the statute and regulation did not answer the question, and also expressed some reservation regarding the canon against purplishage, that the Veterans Court majority should have applied the pro-veteran canon. [00:02:26] Speaker 03: But what, okay, I guess I'm interested in what your view is to what the circumstances are that the veteran's canon comes into play. [00:02:35] Speaker 03: So we've got more than three buckets, but let's say there are three buckets. [00:02:39] Speaker 03: One, it's clear the statute is clear one way or another. [00:02:43] Speaker 03: In that instance, we all agree the veteran's canon plays no role. [00:02:47] Speaker 03: Yes, Your Honor. [00:02:49] Speaker 03: There are several plausible interpretations, but one of them is the most reasonable. [00:02:58] Speaker 03: And let's say that most reasonable interpretive rule goes against the veteran. [00:03:05] Speaker 03: Does the veteran's canon have any play to dislodge that result? [00:03:09] Speaker 04: So Your Honor, while we don't believe that there is any Supreme Court case law that subordinates the Veterans' Canon to the other tools of statutory interpretation, we are aware that this court has created a hierarchy in a sense. [00:03:24] Speaker 04: So under our scheme, we would propose you do look at the text first, and then you would look at other textual canons or descriptive canons. [00:03:32] Speaker 03: And you come up and you say there are several plausible interpretations [00:03:37] Speaker 03: even reasonable interpretations, but we conclude that one of them is more reasonable than all others. [00:03:43] Speaker 03: And that more reasonable interpretation is against the veteran. [00:03:47] Speaker 03: any impact of the veteran's cannon in that circumstance. [00:03:50] Speaker 04: So, Your Honor, if you were able to conclude with the descriptive, the textual, and semantic cannons that there is a more reasonable interpretation of the statute, then we would, yeah, in our understanding, we would not apply the pro-veteran cannon. [00:04:02] Speaker 04: We submit here that... No, I understand. [00:04:04] Speaker 03: You're using this as a hypothetical. [00:04:06] Speaker 03: Right. [00:04:08] Speaker 03: But in the third category, I mentioned at least three buckets. [00:04:11] Speaker 03: If there are two equally plausible interpretations to the language, would you say the ten and then becomes the tiebreaker? [00:04:21] Speaker 04: So Your Honor, we wouldn't categorize the canon as a tiebreaker. [00:04:24] Speaker 04: We would say that after the semantic canons, you look at the veteran canon along with other normative canons. [00:04:30] Speaker 04: But what we would say is that the canon would come before deference. [00:04:35] Speaker 04: So we read the case law as creating some daylight between the concept and interpretive doubt, which is what happens when you've exhausted the semantic canons in the text. [00:04:44] Speaker 04: and absolute ambiguity, which is only kind of what we've reached once we decide that we have used every single tool, including the veteran's canon and our toolkit, and we still don't know what the statute means. [00:04:57] Speaker 01: Counsel, how can we arrive at clarity by looking at the overriding statutes? [00:05:07] Speaker 01: 1114K versus 1114P. [00:05:11] Speaker 01: K talks about each stuff law. [00:05:14] Speaker 01: That doesn't describe pretty clearly the singular, doesn't it? [00:05:21] Speaker 04: So Your Honor, is it your interpretation of each such loss, meaning that a veteran can only obtain one reward under 11, 14? [00:05:29] Speaker 04: I just want to make sure I understand your interpretation. [00:05:32] Speaker 01: That's the point, yes. [00:05:33] Speaker 04: So first of all, I don't believe that that is the reading of 1114K. [00:05:39] Speaker 04: So 1114K is what the veteran, the VA calls a special rate payment variation. [00:05:45] Speaker 04: It is something that you can add to your special monthly compensation rate. [00:05:51] Speaker 04: And I believe that the statute 1114K, because it says you can receive compensation for each such loss, that means that a veteran is able to get 1114K multiple times. [00:06:02] Speaker 04: If he has, you know, one loss he gets, the statute is $96, I think the number is different today, but he gets $96. [00:06:17] Speaker 04: Sure, so 1114P applies to L and N to address first the issue of the singular use of the use of V and rights of singular terms. [00:06:27] Speaker 04: This court has already decided in CERCELY that that's not just positive. [00:06:31] Speaker 04: In CERCELY, the language of the statute used A and the language of the regulation used B in reference to a clothing allowance. [00:06:38] Speaker 04: In this court cited one USC1 stating that words importing the singular include and apply to several persons, parties, or things to conclude that the simple use of the singular term did not limit the veteran to just one allowing. [00:06:53] Speaker 04: But going back to 1114K and the interplay with 1114P, 1114P applies to these rate conditions. [00:07:05] Speaker 04: So K, we are looking at the individual loss of a limb or the loss of the use of a limb. [00:07:10] Speaker 04: Whereas under 11-14-P, we're looking at various conditions listed through SMCL through N. And these conditions are broader than just a single loss of a limb. [00:07:22] Speaker 04: They're the loss of use of both legs, with or without the ability to wear prosthesis, depending on what disability level that you're at. [00:07:29] Speaker 04: So we submit that 11-14-K and P are really apples and oranges in terms of the type. [00:07:34] Speaker 03: But isn't there some overlap between what they're talking about? [00:07:37] Speaker 03: I mean, you agree, even if we accepted your view of the language that he can go in multiple times, it's not absolutely clear. [00:07:50] Speaker 03: We agree with that. [00:07:51] Speaker 03: Wouldn't it have been clearer and more likely that one would have said, that one would have said, and you can do this more than once? [00:07:59] Speaker 03: And that's the principle here. [00:08:01] Speaker 03: Or for each combination of loss we've got under P for over 50% or more, for each of those, you can get a half step. [00:08:10] Speaker 03: That's, I think, Judge Lurie's point, that that's kind of the way Congress did it in K. And why would, if that was their intent in P, why would they not have used that similar language? [00:08:22] Speaker 04: Sure, Your Honor, and we agree that Congress can always be more clear when it legislates with respect to veterans. [00:08:28] Speaker 04: However, Congress cannot be expected to take into account the disabling conditions of every single veteran. [00:08:39] Speaker 04: There are just simply too many conditions to legislate for. [00:08:42] Speaker 04: And so when it created 1114P, if we look at the legislative history, the whole purpose of 1114P was to provide a more flexible scale for veterans to get additional compensation if they had the additional disabilities to qualify for it. [00:08:58] Speaker 04: And with respect to the language difference between 1114K and P, if we looked at the language for 1114P, we can't just simply adopt this kind of each such loss language because P says, in the event the veteran service-connected disabilities exceed the requirements for any of the rights prescribed in the section, the secretary may allow the next [00:09:20] Speaker 04: higher rate or an intermediate rate. [00:09:22] Speaker 04: You would have to change the language more than simply adding, you know, in the event each of the veteran service connected disability or disabilities. [00:09:29] Speaker 04: So I would say that there isn't the same parallel between K and P such that we would conclude that there's a presumption that Congress meant for multiple awards under K but not multiple awards under P. [00:09:45] Speaker 03: Are you aware, has anybody done a search of other statutes, the regulatory regimes under the Veterans Code in terms of the number of them that say have the limiting language and don't have the limiting language? [00:09:58] Speaker 04: So, Your Honor, I'm not aware of that. [00:10:00] Speaker 04: The one case that I think has language very similar in that it uses the singular terms, it uses the deceptive or to describe two different qualifications for an allowance is Cercely, and that's where we decided in Cercely the [00:10:16] Speaker 04: The purpose of the singular term was just to link the receipt of the benefit to the qualification for that benefit. [00:10:23] Speaker 04: So a clothing allowance is linked to the use of a prosthesis or prosthetic device. [00:10:30] Speaker 04: And we would submit here a half step increase is linked to a 50 percent disability or [00:10:37] Speaker 04: you know, a combination of disabilities rate at 50% or more. [00:10:41] Speaker 03: Can I just take it back to the Veterans Canada? [00:10:44] Speaker 03: Of course. [00:10:45] Speaker 03: If there were, how does, I guess, I don't want to dwell on this too much, but I'm trying to see how your view of the Veterans Canada relates when we have a regulation. [00:10:54] Speaker 03: Let's say we've got chevron deference. [00:10:57] Speaker 03: So in a chevron deference circumstance, [00:11:01] Speaker 03: If there's a tiebreaker, does Chevron deference not apply in your view and the veteran's canon would trump Chevron deference? [00:11:12] Speaker 04: Your Honor, I don't believe that the veteran's canon would trump Chevron deference, but I do believe that it should be applied before Chevron deference, along with the other tools of statutory interpretation. [00:11:22] Speaker 04: And we would weigh the veteran's canon just like any other canon or any other tool of statutory interpretation, such that the end result is not that it is necessarily a tiebreaker or that the result necessarily always comes out in favor of veterans. [00:11:36] Speaker 04: And I believe we've done that before in cases such as Nova, where we looked at the veteran's canon and we said, hey, [00:11:42] Speaker 04: The veteran's canon points in favor of the veteran, but the legislative history points in the other direction. [00:11:47] Speaker 04: Therefore, we will find this regulation ambiguous and see if we need to apply deference. [00:11:54] Speaker 04: In that case, I think the court ultimately did not apply deference because the regulation hadn't gone through the proper notice and comment rulemaking, but the analysis was one that applied the pro-veteran canon before considering deference, and it still didn't come out in favor of the veteran. [00:12:12] Speaker 01: I'd like to reserve the remainder of my time. [00:12:28] Speaker 02: I'll begin with P and K questions. [00:12:34] Speaker 02: First when we look at P, [00:12:35] Speaker 02: It characterizes what that issue has, the veterans service-connected disabilities. [00:12:42] Speaker 02: And when they exceed the requirements of any of the rates in the schedule, under P, the secretary may allow the next higher rate or intermediate rate, I think by itself, that answers the question. [00:12:52] Speaker 02: Then when you add it in the P, which incidentally I don't know if the council responded to in a reply, it focused on the P and K question. [00:13:02] Speaker 02: Our view of the P and K question is just as we put it in our brief. [00:13:06] Speaker 02: In the same statute, Congress demonstrates that they can distinguish between disabilities and what we'll call stacking them, if you will, for purposes of this calling may not be the most polite term, but that's [00:13:18] Speaker 03: But don't you agree, don't you see some merit in your friend's analysis of the different things we're talking about in P and K? [00:13:28] Speaker 03: Because I get what she's saying. [00:13:29] Speaker 03: I don't necessarily agree with her, but I get what she's saying in terms of K being different. [00:13:34] Speaker 03: K is much more precise. [00:13:35] Speaker 02: K is much more precise. [00:13:36] Speaker 02: And they have to say that in K. Yeah, because that's the nature of what you're doing in there. [00:13:41] Speaker 02: OK. [00:13:42] Speaker 03: So if that's, I mean, it seems to me that's the main, I mean, the veterans, the quarter veterans claims didn't buy into the language of the regs so much at all. [00:13:51] Speaker 03: And this, it seems to be going through it. [00:13:55] Speaker 03: What am I missing? [00:13:56] Speaker 03: The main thing was K. So if we're not finding the strength of K, where are we? [00:14:03] Speaker 02: I think at the end of the day, well, no, I think Kay is a strong argument. [00:14:07] Speaker 02: I still think it's a classic tool of construction. [00:14:11] Speaker 02: Same statue, same time. [00:14:13] Speaker 02: We're not even talking about different times within the same scheme. [00:14:16] Speaker 02: We're talking about this is the statue. [00:14:18] Speaker 02: They put this together at the same time and they were consciously distinguishing. [00:14:21] Speaker 03: Well, the question is really stuck. [00:14:22] Speaker 03: I mean, forget paint for a second. [00:14:23] Speaker 03: I'm sorry. [00:14:24] Speaker 03: But it depends on what your starting point is. [00:14:27] Speaker 03: When you look at the reg and you assume if somebody says something, is the burden to say that you can only do it once, or is there an assumption that you can't do it more than once, or you can do it more than once? [00:14:43] Speaker 02: So that's, thank you, because when I came to this case recently, I thought, [00:14:50] Speaker 02: It just struck me that the argument being presented here is exactly 180 degrees from how the VA approaches the rating of disabilities. [00:15:00] Speaker 02: The goal, obviously, is to use a combination of objective, and most of it is objective, ratings for all veterans. [00:15:07] Speaker 02: And then you have these extra scheduled provisions, like 3.321 or 4.16, which deal with those special circumstances where somebody can't meet the rating or a combination of ratings, and they get these extra schedule or relief questions. [00:15:19] Speaker 02: And then you have 4.25, which is in our brief, talking about the comparative table. [00:15:24] Speaker 02: And 50 and 50 and 50 in VA ratings doesn't get you 150, it gets you 88. [00:15:29] Speaker 02: 50 and 50 and 50 and 50 doesn't get you 200 or even 100. [00:15:34] Speaker 02: So these things get added together because the goal is to identify the overall disability picture for each veteran that's seeking benefits. [00:15:46] Speaker 02: And the thing that strikes me most about the argument that's being raised here is actually the contrast between F3 and F4, which was the last thing the Veterans Court got to. [00:15:55] Speaker 02: And if you think about it, [00:15:57] Speaker 02: where someone can compile a bunch of 30% ratings, which we know are serious. [00:16:04] Speaker 02: I don't mean to demean anybody's injury, their service, all that. [00:16:08] Speaker 02: But if you're going to tell me that you can combine a bunch of 30% ratings in combination under F3 to get a couple of 50s or maybe three 50s, [00:16:17] Speaker 02: And yet that individual then gets more compensation from VA than the individual who qualifies for a 100% scheduler, which under any of these codes in 4.71 and et cetera afterwards in part four of VA, show that these are serious. [00:16:34] Speaker 03: I take your point. [00:16:35] Speaker 03: On the other hand, and this comes right out of the quarter veterans claims, I think did a nice job in certain respects. [00:16:43] Speaker 03: And when they start off by summarizing the statute, the provisions we're talking about, they talk with them a little background on the SMC as an order. [00:16:53] Speaker 03: It's available when a veteran service-connected disabilities or disability caused, quote, additional hardships above and beyond those contemplated by VA's schedule for rating disability. [00:17:06] Speaker 03: There's no limit on that, on how many. [00:17:09] Speaker 03: hardships you have. [00:17:11] Speaker 03: The rate of SMC, they go on, varies according to the nature of the veterans service-connected disabilities. [00:17:19] Speaker 03: Basic levels are listed in K, providing for compensation. [00:17:22] Speaker 03: If you have three of those, if we're both similarly situated, and Mr. Berry's situation is just monumental, and why would you not be able to get, why shouldn't I get more than you get, [00:17:38] Speaker 03: If I have six or seven or eight of these extra things, they're a loud credit under the statute, and you only have three. [00:17:45] Speaker 03: I've got much more of a hardship. [00:17:47] Speaker 03: And one other point to that is that Congress didn't let things run wild here. [00:17:53] Speaker 03: One thing is clear is they were aware that we've got to cap this at some point, either for budgetary reasons or whatever. [00:17:59] Speaker 03: And there's a cap. [00:18:01] Speaker 03: There's an ultimate cap. [00:18:02] Speaker 03: So I take your point 50-50-50. [00:18:06] Speaker 03: terms of how far you can go that Congress expressly included. [00:18:10] Speaker 02: The answer your honor is quality over quantity. [00:18:12] Speaker 02: It's like last term or last year when you dealt with like Maddox and Rowan and the argument was if I have three pieces of evidence that's going to trump one piece of evidence. [00:18:23] Speaker 02: That's not how it works as this court explained. [00:18:25] Speaker 02: The quality of the discipline, in a way, is as awful as it sounds, the quality of the disability. [00:18:30] Speaker 03: But the provision says that F3 says that you're entitled to this. [00:18:34] Speaker 03: So they're giving credit. [00:18:36] Speaker 03: They're not limiting it to how many. [00:18:38] Speaker 03: But they're saying, no, we think this is serious enough so that if you have a combination of whatever over 50%, you get a half rate. [00:18:46] Speaker 03: We think this is serious enough. [00:18:47] Speaker 02: If you have a 50%, you get a half step up. [00:18:50] Speaker 02: And where does that appear in the regulation? [00:18:53] Speaker 02: F3. [00:18:54] Speaker 02: So to go back to your point, Your Honor, you were making when you were describing what the Veterans Court described as special comp. [00:19:02] Speaker 02: Special comp is all a 3.350. [00:19:05] Speaker 02: Doesn't start at F. Doesn't start at F3. [00:19:08] Speaker 02: Starts at A, B, C, D, E. Very detailed provisions identifying for the rating specialist, because that's what these are really for, is how do I rate these individuals? [00:19:19] Speaker 02: All the various permutations that could exist to qualify under K, [00:19:23] Speaker 02: L, M, N, and O, and extremely detailed, like this, this, if that, then this, then that, then that. [00:19:32] Speaker 02: Pages of the CFR. [00:19:33] Speaker 02: Then you get to F now, the sixth, I think, if my math is right. [00:19:38] Speaker 02: F1 and 2 deal with these intermediate rates within the concept of L, M, and N, okay, under L1114. [00:19:46] Speaker 02: And they, again, precisely deal with, okay, if you got this, you can get a half step between L and M. If you got this, you get a half step. [00:19:53] Speaker 02: The arguments being made here today has been suddenly in F3. [00:19:57] Speaker 02: That all can be sort of set aside if you have a bunch of 30% ratings that are not directly related. [00:20:03] Speaker 02: Well, that's not actually accurate either. [00:20:06] Speaker 02: That are not subsumed within the rating that got you the LM or N or the LM or N half step. [00:20:13] Speaker 01: Mr. Hawkins, let me ask you about the regulations. [00:20:17] Speaker 01: Appendix 11 says a half step increase is provided for under F3. [00:20:24] Speaker 01: Does that come from the subtitle that says additional 50% disabilities? [00:20:31] Speaker 01: And then the bottom paragraph says a full step, but the full step doesn't appear in the regulation. [00:20:39] Speaker 01: But is that implicit in additional independent 100% rating? [00:20:45] Speaker 02: Yeah, the F3 is where the secretary would say, if you have a 50% rating, whether independently rated or in combination, if you have [00:20:54] Speaker 02: And you only need one. [00:20:55] Speaker 02: If you have more, you know, that's awful. [00:20:58] Speaker 02: But you only, it's for one. [00:21:00] Speaker 02: You can get a half step increase beyond what has already been detailed in 3.50 up to that point. [00:21:07] Speaker 01: One half been 50%. [00:21:09] Speaker 02: No, one half step. [00:21:10] Speaker 02: So it's a monetary increase between the rates. [00:21:15] Speaker 02: So like if you look at the schedule in 11-14, they have monetary payments for rates. [00:21:22] Speaker 02: So if you looked at J, which is a typical 100% scheduler rating, or it could be an extra scheduler rating, the veteran gets $2,673 a month. [00:21:32] Speaker 02: That's their compensation. [00:21:35] Speaker 02: Then you get to the special, the special rates, and that's the L, M, and N, and O rates. [00:21:41] Speaker 02: And in the schedule, like for example, L says 33.27. [00:21:44] Speaker 02: So a half step would be what I think the reg and we refer to as like L plus, the rating specials or an M plus. [00:21:55] Speaker 02: That would be the money that would be halfway between L and M, which in this case was about $172 more. [00:22:01] Speaker 02: or where they're at. [00:22:02] Speaker 02: So you're talking L would be like, for example, $3,327. [00:22:05] Speaker 02: And if you got a half-step increase, you would get an additional $172 or $3,499. [00:22:13] Speaker 02: If you got a full-step increase, you'd go from L to M, and you'd get a $3,600. [00:22:19] Speaker 02: So that's what that's referring to is the monetary compensation the veteran gets every month. [00:22:25] Speaker 02: And the half-step gets you, like, it kind of varies based on the [00:22:30] Speaker 02: the difference between the L and the M and the M and the N and the N and the O. But that's what that's referring to is how you... So the F4 would get you a full step. [00:22:39] Speaker 02: If you had 100% schedule or disability, and I want to emphasize because it goes to a point, Judge Post, that you're making before about why can't we combine. [00:22:49] Speaker 02: Think of it this way. [00:22:51] Speaker 02: In the normal situation where someone is not [00:22:54] Speaker 02: in need of special account, the person can combine disabilities under 4.16, for example, even though they don't have a 100% scheduler rating. [00:23:04] Speaker 02: And the court's well aware of cases where that's been done based on employability. [00:23:10] Speaker 02: If you have, under A, if you have a 60% rating, or I think a total 70 with at least a 40, you qualify for a review at the RO. [00:23:21] Speaker 02: had decisions about who has the authority, the director of comp, because then there's the 4.16B thing. [00:23:27] Speaker 02: I'm just kind of, I don't know the name of the case where I just described it. [00:23:31] Speaker 02: But the point being, that's extra schedule or relief. [00:23:35] Speaker 02: That's an individual who couldn't qualify for a direct 100% schedule award, but they benefited from the 4.16. [00:23:40] Speaker 02: If you look at F4, when it describes the kind of rating that is susceptible to the one full step, it specifically says, [00:23:51] Speaker 02: that the rating has to be independently rateable at 100 percent apart from any consideration of individual unemployability. [00:23:59] Speaker 02: That is the criteria for 4.16. [00:24:01] Speaker 02: So what the secretary is saying in four [00:24:05] Speaker 02: is that you cannot qualify for the full set 100% using an extra schedule or bump. [00:24:12] Speaker 03: Can I ask you, does this have anything to do with this thing about the typical combined rating table? [00:24:16] Speaker 03: They're all related. [00:24:17] Speaker 03: Because you're saying that doesn't apply. [00:24:20] Speaker 03: I mean, the other side, correct aptly, I think in gray, comes up with a footnote like, wait a minute, because Gazelle, doesn't Gazelle be show clean? [00:24:29] Speaker 03: say that it would apply? [00:24:31] Speaker 03: What are we applying here? [00:24:32] Speaker 02: The relevance, I think, to this question of how do we interpret F3 of 4.25, the combined ratings table, and what I just described in F4. [00:24:42] Speaker 03: Let me just ask you simply, because I don't want to misunderstand this. [00:24:46] Speaker 03: You're not saying that the combined ratings table is what you use to combine the F3 calculations, are you? [00:24:54] Speaker 02: The logic that one would follow to benefit from a combined rating could be similar to the logic one considers when connecting like a bunch of sub-50s to get to a 50. [00:25:09] Speaker 02: And I even think in Mr. Berry's case, there may even be an example where he has several [00:25:14] Speaker 02: conditions that are ideologically related but are not subsumed within the loss of extremity so that after 1963... Is that what's been done here all along? [00:25:24] Speaker 03: I mean, his case has been adjudicated. [00:25:26] Speaker 03: I didn't think you were using the typical combined ratings table in this case at all. [00:25:31] Speaker 03: Am I missing something? [00:25:33] Speaker 02: The purposes of this discussion, the importance of the combined ratings table. [00:25:37] Speaker 02: is to further demonstrate the rationale that the VA uses when doing ratings, which then the court... Does that apply to the combined rating tables? [00:25:46] Speaker 03: The way they calculate those ratings there apply to the F3 calculations and to these... It would have an effect in a sense if... But see, the combined ratings table is going for an overall rating, right? [00:26:00] Speaker 02: That's the goal of it. [00:26:02] Speaker 02: So that's why I can't say that, you know, oh, we go through a 4.25 exercise as it would be normally applied to a person who's not seeking special comp. [00:26:14] Speaker 02: And in an ordinary case, somebody who's trying to get a rating between A and J on the schedule of 11-14, they would look at all the ratings, and then they do the combined, just as 4.25 describes. [00:26:27] Speaker 02: And that's where you get the concepts. [00:26:28] Speaker 02: that I'm talking about here that are relevant to the court when trying to interpret F3. [00:26:34] Speaker 02: And those concepts are things like we recognize that disabilities don't just stack on top of each other. [00:26:40] Speaker 02: They have a cumulative effect on the individual. [00:26:43] Speaker 02: And we take that into account, for example, when doing combined ratings. [00:26:47] Speaker 02: Or for example, like we have here, where in F4 you have an exclusion and you can't use an extra scheduler under it. [00:26:55] Speaker 03: I have some more questions, but please, go ahead. [00:26:59] Speaker 00: Well, I wanted to go back to the pro-veteran canon. [00:27:03] Speaker 00: You can finish with Judge Brose. [00:27:07] Speaker 03: Oh, well, that was one of my questions. [00:27:10] Speaker 03: But let me ask you just one other, and this goes to the interpretation of the absence of any language, either limiting it or not limiting it, other than the overall tap, which kind of cuts against you a little bit, maybe. [00:27:22] Speaker 03: We just did a quick search of our cases in terms of, you're right, K is closer to this because it's under the same statutory provision, but we've got cases that say the assistance referred to in this section will not be available to any veteran more than once. [00:27:39] Speaker 03: I'm talking about regulatory language. [00:27:41] Speaker 03: Another case which cited regulatory language, the individual may choose to receive benefits under Chapter 33 at any time, but not more than once during a certified court. [00:27:52] Speaker 03: Another case, under these regulations, a veteran cannot be compensated more than once for the same disability. [00:27:58] Speaker 03: I mean, doesn't that, even though your argument on pay, which I take it, but I think it's a little rough to make the comparison, but then you've got other regulatory provisions that if they want to limit the number of times you can get something, they say it. [00:28:13] Speaker 02: And what I hear is that the regulation could have been written better. [00:28:18] Speaker 02: But that doesn't answer the question of what does the regulation mean, nor does looking at A's and B's, that Kaiser doesn't say that. [00:28:24] Speaker 02: Kaiser talks about, you know, text, structure, history, and purpose. [00:28:28] Speaker 02: Those are the thing. [00:28:30] Speaker 02: And what I've been talking about for the most part up here is outside of the P that we talked, and the K that we talked, is structure. [00:28:36] Speaker 02: And you cannot look at this case and conclude that the Secretary of Elections Affairs decided in F3 [00:28:45] Speaker 02: to ignore all that took place before that in 3350, where he spends excruciating detail on outlining how you can get a half step or a full step based upon these disabilities, and then simply say, oh, by the way, if you have a bunch of 30 percenters, and I recommend the court looks through the schedule of ratings [00:29:06] Speaker 02: and compares the descriptions for various disabilities that are rated at 30%, which then can be combined, or even a 30 and a 20 and a 10, and then compare that to the 100% rating for those particular disabilities, and you find one's worse. [00:29:19] Speaker 01: Thank you. [00:29:19] Speaker 01: Dr. Rainer has a question. [00:29:21] Speaker 00: Yes. [00:29:22] Speaker 00: Counselor, would you agree with me that the veteran's law as a whole is remedial in nature? [00:29:32] Speaker 02: remedial. [00:29:33] Speaker 02: I'd have to think about that, but I suppose... Okay, you don't think so? [00:29:39] Speaker 02: But the questions I was anticipating you asking were where do we see... No, answer the question I did ask. [00:29:47] Speaker 00: And I guess you don't. [00:29:50] Speaker 02: I don't have a position on that right now. [00:29:51] Speaker 02: I'd have to think about it. [00:29:52] Speaker 02: I will concede that you've come at me from left field and I'm not prepared to answer your question. [00:29:59] Speaker 00: You don't understand the concept of a remedial statute if it is? [00:30:03] Speaker 02: I would like to hear the context of where we're going. [00:30:08] Speaker 02: But yes, I've heard folks describe that. [00:30:10] Speaker 00: You've actually eliminated the other questions I did have for you. [00:30:14] Speaker 03: Well, I have questions on the veterans' canon then. [00:30:17] Speaker 03: Do you agree with what the other side said? [00:30:19] Speaker 03: I mean, if it's the most reasonable, the veterans' canon doesn't come in. [00:30:23] Speaker 03: But if there are equally plausible interpretations, the veterans' canon can be the target. [00:30:29] Speaker 02: This is a position that [00:30:33] Speaker 02: I will answer your question this way, Judge Post, the way that was presented before. [00:30:37] Speaker 02: I agree that, yeah, that there's obviously a more reasonable interpretation. [00:30:40] Speaker 02: Vexus Cannon has no role. [00:30:45] Speaker 02: I will answer the question about deference this way. [00:30:47] Speaker 02: We have never argued, nor I believe has this court ever held, that the Vexus Cannon trumps deference. [00:30:56] Speaker 03: So you won't agree on if there are two equally plausible, because if there's a deference thing going on here, either through Chevron or through Ailer, you don't want to give that up. [00:31:12] Speaker 02: I understand that the Solicitor General has taken the position in a couple of cases that these normative canons don't trump textual or more traditional canons. [00:31:25] Speaker 02: And I don't think that's changed yet. [00:31:26] Speaker 02: So for now, I would say the answer is yes. [00:31:29] Speaker 03: We would say that deference trumps... Can I just... Deference apply in this case at all? [00:31:38] Speaker 02: We're not asking for deference. [00:31:40] Speaker 00: Let me ask you this, Councilman. [00:31:43] Speaker 00: Are you saying that once the difference, the Chevron doctrine is applied to a particular case, [00:31:53] Speaker 00: and you have a result under the analysis of Chevron that the veteran's canon cannot come into play at all? [00:32:01] Speaker 02: We have argued, let me put it this way, we have argued that Chevron trumps the veteran's canon. [00:32:07] Speaker 00: What do you mean trumps? [00:32:09] Speaker 02: It's to be looked at before consideration of the veteran's canon. [00:32:14] Speaker 00: Once a Chevron doctrine resolution is reached, the Chevron analysis is done and there's [00:32:22] Speaker 00: an announcement as to the reasonableness of the agency's determination. [00:32:27] Speaker 00: Are you saying that at that point, there's no role for the veterans doctrine? [00:32:33] Speaker 02: I don't know if I would, if you're saying that... Is that what you mean by Trump's? [00:32:37] Speaker 00: Is that what you mean by Trump's? [00:32:38] Speaker 02: If your hypothetical is that at the end of a Chevron analysis, it's determined that, I don't know, if the secretary's position is determined unreasonable somehow, it's probably that. [00:32:47] Speaker 00: No, that analysis, the conclusion reached by that analysis cannot be affected [00:32:52] Speaker 00: or influenced by the Veterans' Canon? [00:32:55] Speaker 02: We have argued that you need to do the Chevron analysis first. [00:32:59] Speaker 00: So in that sense, yes, that would be... Give me an example of where the Veterans' Canon does apply. [00:33:06] Speaker 02: Well, the courts have announced that where all other tools of construction have been exhausted, [00:33:12] Speaker 02: the Vectors' Canon. [00:33:13] Speaker 00: No, no, that's an example or description. [00:33:15] Speaker 02: Yeah, I don't... Oh, where our Chief Court has actually done it. [00:33:18] Speaker 00: Yeah. [00:33:20] Speaker 00: I believe that... Does the agency do this? [00:33:22] Speaker 02: I think where it... Now we can get into a discussion of its origin, which of course doesn't really have to do with Vectors' Canon. [00:33:27] Speaker 00: No, I'm asking you. [00:33:28] Speaker 00: Can you give me an example? [00:33:30] Speaker 02: I'm not sure there's a case involving veterans benefits where they've done that. [00:33:34] Speaker 02: I think the origin of it had to do with folks that were overseas and couldn't get back in time to meet their court obligations. [00:33:40] Speaker 02: And so that's the origin, as I recall, like in King in those cases. [00:33:43] Speaker 02: That's the origination. [00:33:45] Speaker 02: I do want to say one thing about the veterans. [00:33:48] Speaker 00: I'm sorry. [00:33:48] Speaker 00: You don't have an example. [00:33:50] Speaker 02: I can't think of one right off my dock. [00:33:52] Speaker 02: But I want to say one thing about the veterans canon in this case, Treasurina. [00:33:56] Speaker 02: And that is this. [00:33:57] Speaker 02: As this court articulated in Sears and in other cases, application of the veterans' canon has to consider all veterans, not just the particular applicant before this court at the time. [00:34:08] Speaker 02: One would, I think, have to say that an interpretation, even if you were to use the veterans' canon of this particular F3 that would allow someone who is in the eyes of the VA, less of disabled, [00:34:20] Speaker 02: setting aside Mr. Berry in his particular condition, because that's not what this court's being asked to do here. [00:34:24] Speaker 00: It's being asked... What do you mean by that? [00:34:26] Speaker 00: I mean, it seems to me... It gets a little less than half an hour. [00:34:29] Speaker 00: I agree to a certain application what you just said. [00:34:32] Speaker 00: I think that every veteran is entitled to a review of the statute in his case [00:34:41] Speaker 00: and that the veteran's canon would apply it. [00:34:44] Speaker 00: And that's another benefit that should be applicable to every single veteran. [00:34:50] Speaker 00: I agree with you, but I don't agree. [00:34:52] Speaker 00: And I think this is what you're saying, is that you don't apply the veteran's canon if it's going to affect another veteran somewhere. [00:35:00] Speaker 00: It's got to be the benefit to the whole universe of veterans. [00:35:06] Speaker 00: I think that's... This is probably why you can't give me an example. [00:35:08] Speaker 02: Right. [00:35:09] Speaker 02: We would probably agree to disagree on that one, Your Honor, because I do believe that... You can't give me an example. [00:35:15] Speaker 02: Well, because I don't believe the veteran's canon is a sort of tool to get to a result. [00:35:19] Speaker 02: I think the veteran's canon is a tool to interpret the law to benefit veterans, not just the veteran that's before the court at the time. [00:35:28] Speaker 01: Okay. [00:35:29] Speaker 01: Thank you, counsel. [00:35:30] Speaker 01: Thank you. [00:35:38] Speaker 04: So, Your Honors, I'd like to go back and just look at what the purpose of special monthly compensation is. [00:35:43] Speaker 04: And I believe, Judge Crost, you picked up on this. [00:35:46] Speaker 04: Special monthly compensation is meant to address the hardship, the additional hardships that are most severely disabled veterans face. [00:35:54] Speaker 04: These are hardships that are not contemplated for in the regular schedule or rating. [00:35:58] Speaker 04: That's why Congress came up with special monthly compensation. [00:36:01] Speaker 04: And it, as you also noted Judge Gross, that Congress did protect itself. [00:36:05] Speaker 04: It created a statutory cap of SMC level O. So even if Mr. Berry had disabilities where he could qualify for endless half-step increases, he would still be capped at statutory level O. [00:36:18] Speaker 04: My friend across the aisle has mentioned that the quality of the disability matters. [00:36:24] Speaker 04: However, our case law especially and certainly has said we don't ignore the practical realities of the veteran situation. [00:36:31] Speaker 04: We don't believe in this case a veteran like Mr. Berry with all of his disabilities simply because one of them does not [00:36:37] Speaker 04: individually rate at 100% is somehow less disabled or less deserving of compensation than a veteran who has one single disability rated at 100% that would allow him a full-step increase. [00:36:50] Speaker 04: Furthermore, looking at the structure of special monthly compensation, I believe my friend has suggested that there could be some slippery slope where we have veterans who are undeserving, who are able to somehow add up their additional disabilities to get multiple half-step increases, but we would submit that that's not the case. [00:37:09] Speaker 04: For a veteran to even qualify for an SMC rate, he has to be severely disabled. [00:37:14] Speaker 04: At that point, his disabilities as his SMC rate are not enough, which is why we allow these half and full step increases. [00:37:24] Speaker 04: So it would be very difficult for a veteran who isn't severely disabled to even mathematically have the various disabilities to add up to get multiple half-stuck increases. [00:37:35] Speaker 04: So I don't think there should be a concern there about some slippery slope or, you know, [00:37:41] Speaker 04: I don't believe that they're undeserving veterans, but there is some way that someone can take advantage of our interpretation of the statute and the regulation. [00:37:51] Speaker 04: Furthermore, we have discussed the structure, and we've taken a lot of time to discuss P and K. Again, we submit that P is talking about the SMC ladder, L through N, and how you can move up that ladder, whereas K is talking about something entirely different. [00:38:07] Speaker 04: And so the presumption that certain language was used in K and not P is not as indicative that Congress didn't intend for multiple steps under P. However, we would also ask you to look at the structure of subsections F and 3, or F3 and F4. [00:38:22] Speaker 04: I think there is a concern that a veteran can get a higher rate under F3 than he can under F4, but there is nothing in the regulation. [00:38:29] Speaker 04: In fact, the regulation permits stacking F3 on top of F4. [00:38:34] Speaker 04: F4 explicitly says, in addition to L and N, [00:38:37] Speaker 04: and the other intermediate rates outlined above referring to F3. [00:38:41] Speaker 04: So therefore, if a veteran so qualifies and he has a 100% disability and he has other disabilities, he can get subsection F4, one full step, and he can also get a half step under subsection F3. [00:38:52] Speaker 04: So we don't read those subsections as being mutually exclusive, and we see subsection F [00:38:57] Speaker 04: as a whole, F1, F2, F3, F4, as describing different ways that veterans can go up the SMC ladder so long as their disabilities permit them to. [00:39:09] Speaker 04: And so we contend that our Mr. Berry's interpretation is most consistent with both the history, the purpose, as well as the structure of the language. [00:39:16] Speaker 04: And Your Honor, I think my time is up. [00:39:18] Speaker 03: I have one quick question, and just to respond to Mrs. Nye's major point, but on Mr. Hocky and my discussion, brief as it was on the combined rating table, and whether that's what the applicability that that has to any circumstance. [00:39:32] Speaker 04: Sure, Your Honor. [00:39:33] Speaker 04: So we have read Giselle and we believe that the combined grading table, to the extent that it applies to subsection F3, teaches the VA how to combine his disabilities to get through the threshold of 50%, but it doesn't limit the number of times that he can reach that threshold. [00:39:52] Speaker 04: So once he gets a half-step increase, he can use the table again and get another half-step increase if his disabilities permit. [00:39:58] Speaker 01: Thank you. [00:39:59] Speaker 01: Thank you, Counsel. [00:40:01] Speaker 01: Case is submitted.