[00:00:00] Speaker 03:
Don't put the two dash

[00:00:09] Speaker 01:
May it please the court, Kenneth Carpenter, appearing on behalf of Michael Kosner.

[00:00:14] Speaker 01:
Mr. Kosner asked this court to interpret the secretary's regulation of 38 CFR 4.124, lower case A, concerning specifically diagnostic code 8045, which evaluates traumatic brain injury.

[00:00:33] Speaker 01:
Specifically to interpret how

[00:00:37] Speaker 01:
VA adjudicators, including the board, are to evaluate the subjective symptoms reported by the veteran.

[00:00:45] Speaker 01:
The Secretary's regulation, specifically his diagnostic code, acknowledges unambiguously that a veteran's subjective symptoms may be the only residuals that a veteran suffers from his or her TBI.

[00:01:00] Speaker 01:
In this case, that is clearly the circumstance.

[00:01:04] Speaker 02:
How would you characterize the legal issue you're presenting to us for review here today?

[00:01:11] Speaker 01:
I think it's a question of whether or not, as the Veterans Court relied upon, that the board could simply declare categorically that these subjective symptoms are not residuals.

[00:01:25] Speaker 01:
I believe, under the correct interpretation of the regulation, that the Secretary has conceded that any subjectively reported symptom is a residual and must be evaluated.

[00:01:40] Speaker 01:
And there is additionally no question that in the first appeal that Mr. Costner finally was able to bring to court,

[00:01:49] Speaker 01:
The secretary agreed and prepared himself a joint remand which expressly acknowledged that Mr. Costner had reported headaches, dizziness, nausea, memory impairment, and that the board had failed to address the appellant's reports of imbalance and sensitivity to light.

[00:02:09] Speaker 02:
Are you continuing that automatically subjective symptoms are residuals of TBI?

[00:02:15] Speaker 01:
Under the terms of this regulation, yes, Your Honor.

[00:02:20] Speaker 01:
because there is an acknowledgment on the part of the secretary that that may be the only symptoms.

[00:02:27] Speaker 01:
And the problem, of course, with subjective symptoms is there is no medical source, medical test, medical corroboration for those symptoms.

[00:02:39] Speaker 01:
Specifically, when a person says they have a headache, there is no diagnostic test, no

[00:02:49] Speaker 01:
evaluative tool that can say yes or no that person has a headache.

[00:02:55] Speaker 02:
But couldn't that headache be caused by something else besides TBI?

[00:03:01] Speaker 01:
It certainly can be, Your Honor, and I think that that's what the board relied upon, that there was potentially another source for that, ironically of which it was the very headaches that he was representing were the source.

[00:03:14] Speaker 01:
And so it seems to be, at the very least,

[00:03:18] Speaker 03:
The board did not find that there was another source for these subjective symptoms.

[00:03:25] Speaker 03:
And to this day, it seems to me that what you're bringing before the court is a mere disagreement, a factual disagreement as to how the board interpreted the symptoms and applied those to the rating board.

[00:03:40] Speaker 01:
And that would be correct, Your Honor, if this panel in fact found that subjective symptoms as referenced in this diagnostic code are in fact a factual question.

[00:03:52] Speaker 01:
I submit that the secretary's use of subjective symptoms in this diagnostic code for this specific disability is the unique representation of the problems there are in diagnosing what the resulting disability is from a traumatic brain injury.

[00:04:12] Speaker 01:
Therefore, this becomes a question of regulatory interpretation, which is a question of law within this court's jurisdiction and is not a question of application of law to fact.

[00:04:26] Speaker 01:
In this case, the board determined that the only subjective symptoms, as reported, were not residuals.

[00:04:36] Speaker 01:
They made a negative finding.

[00:04:39] Speaker 01:
The Veterans Court agreed.

[00:04:43] Speaker 01:
Their misinterpretation of the regulation was when it concluded that the board's finding that Mr. Kosner does not have symptoms that constitute residuals did not then require the board to evaluate the subjective symptoms under Diagnostic Code 8040.

[00:05:05] Speaker 01:
Yet the plain language of the regulation says that those subjective symptoms will be evaluated.

[00:05:13] Speaker 01:
And if they are evaluated because they are the only residuals of a disability, let's step back for just a minute and look at what 1110 says.

[00:05:26] Speaker 01:
1110 says that if you have a disability, the United States will compensate you.

[00:05:32] Speaker 01:
The VA has determined since 2008 that Mr. Costner has a disability from TBI.

[00:05:40] Speaker 01:
And yet he has received since 2008 no compensation for that disability.

[00:05:46] Speaker 01:
And he has consistently reported to the VA his subjective symptoms.

[00:05:53] Speaker 01:
The VA has consistently rejected them.

[00:05:56] Speaker 02:
In your view, what work does the phrase that are revisions of TBI do in the actual language of the regulation?

[00:06:04] Speaker 01:
How are you interpreting that portion?

[00:06:10] Speaker 01:
in its entirety in reference to subjective symptoms, that phrase must be understood to mean that the reported subjective symptoms have to be evaluated as residuals.

[00:06:26] Speaker 01:
In other words, it is an implicit concession by the Secretary that

[00:06:32] Speaker 01:
the reported subjective symptoms, which he specifically chose to identify in the regulation.

[00:06:38] Speaker 01:
He could have remained silent in the regulation, and this would not be an issue of regulatory interpretation.

[00:06:45] Speaker 01:
But he chose specifically to make the clear declaration in his regulation that a veteran

[00:06:54] Speaker 01:
The only residuals that the veteran may have of his TBI is the subjective symptoms that he experiences.

[00:07:15] Speaker 01:
We framed the issue as whether or not the plain language of the regulation and diagnostic code required the board to address whether or not his reported symptoms required them to address them and then evaluate each of them as separate disabilities for rating purposes.

[00:07:37] Speaker 01:
The specific

[00:07:44] Speaker 01:
description of the issue presented was the Veterans Court erred by misinterpreting the unambiguous language.

[00:07:53] Speaker 01:
Oh, I'm sorry.

[00:07:54] Speaker 01:
I'm reading from my brief here, not my brief below.

[00:07:57] Speaker 01:
I apologize.

[00:08:00] Speaker 01:
I didn't bring my brief below.

[00:08:01] Speaker 03:
You're reading the section where you frame the issues that are before this.

[00:08:06] Speaker 01:
That's great.

[00:08:06] Speaker 03:
And I'm asking you about the issues before the Veterans Court.

[00:08:11] Speaker 03:
Did you make this argument or make it today at the Veterans Court?

[00:08:16] Speaker 01:
Well, it was certainly my intent to do that, Your Honor, because we were coming back from a remand.

[00:08:22] Speaker 03:
If you didn't make that argument below, then we don't have anything to review.

[00:08:27] Speaker 01:
Well, Your Honor, even if I did not make it explicitly, there is no other way to interpret the decision of the Veterans Court other than to say that the regulation does not have to be applied when the board says... That may be true, but you haven't brought that argument properly before us.

[00:08:45] Speaker 01:
Well, I'm sorry, Your Honor, I disagree.

[00:08:48] Speaker 01:
The statute says any interpretation of a statute or regulation relied upon by the Veterans Court.

[00:08:55] Speaker 01:
And there was a reliance on an interpretation of a regulation by the Veterans Court.

[00:09:01] Speaker 03:
That's a legal question.

[00:09:02] Speaker 03:
That's a legal question, and it's a legal question property law in Sears Court.

[00:09:06] Speaker 01:
Yes.

[00:09:06] Speaker 03:
But you didn't raise that issue below.

[00:09:09] Speaker 01:
And I'm saying that I believe I did, but even if I did not, this court's jurisdictional statute says that this court's jurisdiction extends to an interpretation relied upon

[00:09:23] Speaker 01:
by the Veterans Court in its decision.

[00:09:25] Speaker 01:
And by affirming the board's decision that there were no residuals that would entitle Mr. Costner to compensation for his subjective symptoms was an interpretation.

[00:09:39] Speaker 01:
In other words, the interpretation relied upon by the Veterans Court creates the quintessential catch-22.

[00:09:46] Speaker 01:
The Secretary says on the one hand that the

[00:09:52] Speaker 01:
Subjective symptoms may be the only residuals.

[00:09:56] Speaker 01:
The veteran presents subjective symptoms, and then they are declared not to be residuals.

[00:10:03] Speaker 01:
And therefore, he gets no benefits.

[00:10:06] Speaker 01:
Now, that simply creates an impossible way for the veteran to get compensation as compensation is required under 38 U.S.C.

[00:10:16] Speaker 01:
1110.

[00:10:16] Speaker 01:
I see that I'm into my rebuttal time.

[00:10:18] Speaker 01:
I'd like to reserve the ballot.

[00:10:20] Speaker 03:
OK.

[00:10:20] Speaker 03:
Thank you.

[00:10:36] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:10:39] Speaker 00:
Mr. Costner appears to be arguing for an interpretation of the regulation that creates a presumption that any time you have subjective symptoms, those are automatically considered residuals of a TBI.

[00:10:52] Speaker 00:
That's not how the regulation operates.

[00:10:54] Speaker 00:
And that's not what the board included, but to the extent that there's any legal question about the regulation, that is the only question presented that could be reviewed by this court.

[00:11:06] Speaker 00:
The VA certainly knows how to create presumptions when it wants.

[00:11:09] Speaker 00:
It could have created a presumption that if you have subjective symptoms, headaches, dizziness, nausea, light sensitivity, those automatically would become

[00:11:19] Speaker 00:
TBI residuals, but the VA did not do that because there are other reasons why nausea light sensitivity imbalance could be present in an individual.

[00:11:31] Speaker 03:
Did it consider those factors in this case?

[00:11:35] Speaker 00:
It did, Your Honor, yes.

[00:11:36] Speaker 00:
And this is at page 90 of the appendix.

[00:11:39] Speaker 00:
There's a paragraph starting about 2 thirds down the page where the board, this is on remand, expressly considered that Mr. Costner presented or reported headaches, dizziness, disequilibrium, light sensitivity, nausea, and memory impairment.

[00:11:57] Speaker 00:
And it said, all of which he's competent to report.

[00:11:59] Speaker 00:
That's the subjective symptoms.

[00:12:01] Speaker 00:
He reports that he has a headache or that he gets dizzy, loses balance, sensitive to light.

[00:12:07] Speaker 00:
And then the board went on to say that, based on the three medical exams that he had, all of those examiners concluded that these symptoms are not due to his TBI, which was mild in the 1960s because of the remote onset of these subjective symptoms.

[00:12:26] Speaker 00:
the medical examiners and the board considered his reported symptoms and concluded that they're not residuals of a TBI.

[00:12:33] Speaker 00:
First of all, that's a factual determination that this court doesn't review, but second, that determination here is supported by the medical evidence.

[00:12:41] Speaker 00:
There's nothing that Mr. Kossner presents to counter that except for his argument that there should be a presumption, and that's not the regulation.

[00:12:48] Speaker 02:
It seemed to me as if maybe he were opposing counsels reading the word that out of the regulation, right?

[00:12:55] Speaker 02:
Because when I was listening to kind of the argument that was being made, I think the way the language reads is subjective symptoms that are residuals of TBI.

[00:13:04] Speaker 02:
But the way I was hearing it was almost subjective symptoms are residuals of TBI.

[00:13:08] Speaker 02:
Is that your take, or?

[00:13:09] Speaker 00:
Yes.

[00:13:10] Speaker 00:
They're arguing for that presumption that any time you have subjective symptoms, those are automatically considered residuals.

[00:13:17] Speaker 00:
They can or may not be, depends on the factual circumstances.

[00:13:21] Speaker 00:
That's where competent medical evidence comes in.

[00:13:24] Speaker 00:
And that's what happened here.

[00:13:30] Speaker 00:
Happy to answer any other questions that the court has or cede the remainder of my time.

[00:13:36] Speaker 03:
Thank you very much.

[00:13:43] Speaker 01:
Just right now, I apologize.

[00:13:44] Speaker 01:
I found where I actually have in the appendix a copy of my brief to the Veterans Court.

[00:13:51] Speaker 01:
It's at appendix 95.

[00:13:53] Speaker 01:
And in the table of contents, argument number two is that the board failed to correctly apply the provisions of 4.124, lower case A, diagnostic code 8045.

[00:14:08] Speaker 01:
And while that does not present the question of the interpretation, an interpretation both was required to determine whether there was or wasn't a failure to correctly apply, as well as the Veterans Court relied upon a specific interpretation.

[00:14:26] Speaker 01:
I'd like to back up for a second.

[00:14:27] Speaker 03:
Where's the?

[00:14:29] Speaker 01:
Appendix 95.

[00:14:29] Speaker 03:
No, I had that.

[00:14:31] Speaker 01:
OK.

[00:14:31] Speaker 03:
But that's a table of contents.

[00:14:34] Speaker 01:
OK.

[00:14:35] Speaker 03:
You refer to so many arguments, section 1?

[00:14:41] Speaker 01:
The actual argument begins at appendix 105 and ends at 110.

[00:14:55] Speaker 01:
And it begins with a description of the very section of the diagnostic code that we have been discussing that begins with the phrase, the subjective symptoms may be the only residual of TBI.

[00:15:12] Speaker 03:
OK.

[00:15:12] Speaker 03:
Thank you for that.

[00:15:13] Speaker 01:
And I apologize, Your Honor.

[00:15:15] Speaker 03:
That's OK.

[00:15:16] Speaker 03:
I'll take a look at that in a second.

[00:15:21] Speaker 01:
The government seems to infer that we are asking for a presumption.

[00:15:28] Speaker 01:
The word presumption does not appear in our briefing.

[00:15:31] Speaker 01:
We are not asking for a presumption.

[00:15:33] Speaker 01:
We are asking for an interpretation that when the Secretary made reference to subjective symptoms as the only

[00:15:44] Speaker 01:
as may be only residuals of TBI, he was asking that his adjudicators evaluate those subjective symptoms as though they were a residual.

[00:15:59] Speaker 01:
And as such,

[00:16:01] Speaker 01:
the veteran should be entitled to some compensation.

[00:16:05] Speaker 01:
This veteran has received no compensation for his disability for TBI.

[00:16:11] Speaker 01:
And that simply seems to be inconsistent with the overall statutory scheme, plus the non-paternalistic system would suggest that that is a reasonable inference to read into this regulation.

[00:16:26] Speaker 01:
And that if you read that inference into this regulation, then the board should have been obligated to, as it was directed to by the secretary in the remand, to consider these as residuals.

[00:16:41] Speaker 01:
And they simply did not.

[00:16:42] Speaker 01:
They simply categorically determined that they were not residuals.

[00:16:46] Speaker 01:
Unless there's further questions from the panel?

[00:16:49] Speaker 03:
You wanted to say paternal rather than non-paternal, didn't you?

[00:16:52] Speaker 01:
I'm sorry.

[00:16:53] Speaker 01:
I did.

[00:16:53] Speaker 01:
Excuse me.

[00:16:56] Speaker 01:
Thank you very much.