[00:00:00] Speaker 02:
Our next case is Steele versus McDonough, 22-2282.

[00:00:07] Speaker 02:
Before the parties come up, we're going to have... No.

[00:00:12] Speaker 02:
Go ahead, Mr. Carlin.

[00:00:15] Speaker 02:
Are you taking the picture?

[00:00:17] Speaker 02:
Okay.

[00:00:17] Speaker 02:
One, two, three.

[00:00:27] Speaker ?:
One more.

[00:00:28] Speaker ?:
I'm going to flip this way.

[00:00:35] Speaker 03:
Thank you, sir.

[00:00:59] Speaker 03:
I feel like I just saw you yesterday.

[00:01:02] Speaker 03:
It occurs to me that that was exactly what happened yesterday.

[00:01:05] Speaker 02:
You have reserved five minutes of your time for me, correct?

[00:01:08] Speaker 03:
Yes.

[00:01:08] Speaker 03:
All right.

[00:01:09] Speaker 03:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Kevin Steele.

[00:01:14] Speaker 03:
The determination of the Veterans Court in this case was that the board decided the issues of service connection, which is premised, in our view,

[00:01:23] Speaker 03:
based upon a misrepresentation of the relevant and applicable regulation for rating traumatic brain injury.

[00:01:31] Speaker 03:
And if the panel does not object, I will refer to that as TBI rather than repeating traumatic brain injury over and over again.

[00:01:40] Speaker 03:
And under this regulation, we believe the orders that were issued

[00:01:45] Speaker 03:
relative to service connection, both granting and denying, were not appropriate.

[00:01:51] Speaker 03:
And therefore that implicated the provisions of 7104D3.

[00:01:56] Speaker 02:
Mr. Steele asked... Your argument is that the Board should have provided separate grants of connection.

[00:02:04] Speaker 03:
No, Your Honor, not quite.

[00:02:06] Speaker 02:
It's the service connection.

[00:02:07] Speaker 02:
A separate rating.

[00:02:08] Speaker 03:
A separate rating.

[00:02:09] Speaker 02:
You're looking for a rating.

[00:02:10] Speaker 02:
Shouldn't you have submitted a Nod document in order to have this argument, to raise the argument before the board and then the court of appeals?

[00:02:21] Speaker 03:
I don't think so, Your Honor.

[00:02:23] Speaker 02:
This is a continuously- I mean the notice of disagreement when I said nod.

[00:02:27] Speaker 03:
Yes, yes, notice of disagreement.

[00:02:30] Speaker 03:
This is a continuously pursued claim from the original grant of service connection for DBI.

[00:02:35] Speaker 03:
And during the course of the proceedings, including one prior- But the rated aspect is a different issue.

[00:02:43] Speaker 02:
You were looking for service connection.

[00:02:45] Speaker 02:
That's what the case was about, turned into the rating.

[00:02:49] Speaker 02:
You win.

[00:02:50] Speaker 02:
You won.

[00:02:52] Speaker 02:
Well, now you're raising another argument, which it seems to me, as you were told by the Court of Veterans Claims, that you should have filed a notice of disagreement and proceeded before the board first.

[00:03:08] Speaker 03:
And that certainly would have been an option.

[00:03:13] Speaker 03:
However, Congress, at 7104A, requires that the board, in reaching its decisions,

[00:03:22] Speaker 03:
consider all potentially applicable provisions of law.

[00:03:26] Speaker 03:
And this court has just recently addressed that issue under 7104A, or excuse me, under 7104D1.

[00:03:35] Speaker 03:
We believe that the board had an obligation to both consider the provisions that apply to rating and not to service connection, because this- The board said obligation.

[00:03:49] Speaker 03:
What's the legal authority for the obligation?

[00:03:51] Speaker 03:
7104A.

[00:03:52] Speaker 03:
7104A requires that the board, in its decision, consider the entire record and all potentially applicable provisions.

[00:04:02] Speaker 02:
Wait, you want us to instruct the board?

[00:04:05] Speaker 03:
No, I wanted the Veterans Court to instruct the board.

[00:04:10] Speaker 02:
There's no legal authority for that.

[00:04:12] Speaker 03:
Well, I believe there is legal authority for that, Your Honor, under 7104D3, because Congress expressly mandated that the orders from the board, whether granting or denying, must be appropriate.

[00:04:26] Speaker 03:
And appropriate in the context of a non-adversarial system of adjudication puts a different spin or a different perspective on the word appropriate.

[00:04:42] Speaker 03:
Why they would have added that qualifier to orders is precisely, I believe, the legal question that we presented below and the question that we're asking this court to answer.

[00:04:54] Speaker 01:
So in your view, what would the order be to say to constitute an appropriate order?

[00:05:01] Speaker 01:
pit the appropriate relief, order granting appropriate relief.

[00:05:03] Speaker 03:
The appropriate relief would have been to direct the agency not to recognize these conditions as service-connected because TBI was already service-connected, but rather under the provisions of

[00:05:18] Speaker 03:
4.12a and diagnostic code 8045, they should have instructed the board on each of these conditions to award compensation based upon the plain language of

[00:05:35] Speaker 03:
this regulation because this regulation is unique amongst VA regulations that relate to the rating of disabilities because this regulation, different from any other regulation, recognize that there is a central source

[00:05:53] Speaker 03:
of the entitlement to compensation.

[00:05:56] Speaker 03:
And that primary source is the TBI.

[00:06:00] Speaker 03:
But there are a wide variety of both subjective and diagnosed conditions that are additionally compensable for TBI when the evidence of record shows that.

[00:06:14] Speaker 03:
And by finding as they did that these additional conditions were all related to TBI,

[00:06:23] Speaker 03:
then that should have increased the rating and not added additional layers of service connection.

[00:06:30] Speaker 01:
Do you think there needs to be service connection, though, in order to get such a rating?

[00:06:35] Speaker 03:
Yes.

[00:06:35] Speaker 03:
And Mr. Steele is.

[00:06:38] Speaker 03:
He is service connected for TBI.

[00:06:40] Speaker 03:
And that's the critical part about why these orders are not appropriate.

[00:06:45] Speaker 03:
They are not.

[00:06:46] Speaker 02:
That you did not argue before to the board.

[00:06:49] Speaker 02:
Oh, not before the board.

[00:06:50] Speaker 02:
No, we are.

[00:06:50] Speaker 02:
Before the court.

[00:06:52] Speaker 03:
Well, before the Veterans Court we did, yes.

[00:06:54] Speaker 03:
We did?

[00:06:54] Speaker 03:
Yes, that was our primary directive to them that under 71, in our briefing, that under 7104D3

[00:07:03] Speaker 03:
The court had the responsibility to review whether the orders granting and denying service connection were appropriate, given that TBI was already granted service connection, and that under the rating code, now the Veterans Court concludes.

[00:07:22] Speaker 02:
The argument that I'm referring to is that the board should have provided a separate grant of connection.

[00:07:28] Speaker 05:
And that wasn't argued to the board, is what we're asking.

[00:07:32] Speaker 03:
No, that was not argued to the board, because in our view, Mr. Steele relied upon 7104A.

[00:07:39] Speaker 03:
Are you making that argument to us?

[00:07:43] Speaker 03:
No, I'm not making that argument to you.

[00:07:46] Speaker 03:
I slipped on that banana peel before.

[00:07:49] Speaker 03:
I'm not making that argument.

[00:07:51] Speaker 03:
The argument that I'm making to you is that the Veterans Court made an error of law in refusing to address the applicability of both the diagnostic code for rating and not service connection purposes and the obligation of the board to issue appropriate orders.

[00:08:09] Speaker 03:
And the orders that they issued were for service connection, both granting and denying.

[00:08:16] Speaker 03:
And that ends up ultimately denying Mr. Steele the opportunity to get all of the compensation that he is entitled to for his TBI, all of the residuals

[00:08:30] Speaker 03:
of that TBI.

[00:08:31] Speaker 03:
And those conditions do not require a separate finding or legal determination of service connection.

[00:08:39] Speaker 03:
The service connection was dealt with and granted by the matter that started this original proceeding back in 2017, which was the grant ultimately of the prior denial of service connection for his TBI.

[00:08:56] Speaker 03:
And then over the years, as the

[00:09:00] Speaker 03:
board recognized there were a variety of representations made by Mr. Steele that he had these additional disabilities that were related to his TBI injury.

[00:09:16] Speaker 03:
None of these additional or

[00:09:22] Speaker 03:
other types of conditions or disabilities were related to any other cause other than is already service-connected.

[00:09:31] Speaker 02:
What advantage do you get if there's a separate findings of service connection or the rating as opposed to the collective rating as was done here?

[00:09:44] Speaker 02:
What's the advantage to your client?

[00:09:47] Speaker 03:
that the VA does not, as it has done in this case, combine those additional disabilities as part and parcel of the TBI.

[00:10:00] Speaker 03:
They are entitled to a separate rating

[00:10:03] Speaker 03:
And then those ratings are to be combined under 4.125.

[00:10:08] Speaker 05:
I'm clearly the newest person to deal with this.

[00:10:16] Speaker 05:
So if we're dealing with DC 8045, explain to me where in that, because I couldn't find it, it has this requirement that they make these separate findings.

[00:10:29] Speaker 03:
In the notes, Your Honor.

[00:10:33] Speaker 03:
I think I've got it right here.

[00:10:43] Speaker 03:
It begins with note one, following an extensive description about the three main areas of dysfunction that may result from TBI.

[00:10:57] Speaker 03:
And they go on, and at note one, they talk about the overlapping manifestations.

[00:11:04] Speaker 03:
At two, they talk about the symptoms and examples of certain evaluation levels that are not symptoms but must be present in order to assign a particular evaluation.

[00:11:18] Speaker 03:
And it simply goes on in that note from there to describe.

[00:11:23] Speaker 03:
And in fairness, this is a very complex

[00:11:28] Speaker 03:
process to figure out what the right way is to evaluate it.

[00:11:33] Speaker 02:
What's the advantage to your client?

[00:11:37] Speaker 03:
Because he gets recognized for each of these additional disabilities under the diagnostic code and therefore he is entitled under that diagnostic code to be separately rated for each one of these.

[00:11:52] Speaker 02:
My client's concern is... Why are you insisting on the separate rating?

[00:11:57] Speaker 02:
That's what I'm asking.

[00:11:57] Speaker 02:
What's the advantage?

[00:11:59] Speaker 03:
because he is not being rated.

[00:12:02] Speaker 03:
When he got service connection for PTSD, they rated his PTSD together with his TBI, and the TBI rating was 70.

[00:12:11] Speaker 03:
They service connected him for PTSD, found that he met the mental health criteria for a 70% rating, and he gets a rating of 70%.

[00:12:19] Speaker 03:
Not two separate 70% ratings.

[00:12:23] Speaker 03:
And that's exactly what's going to happen with these other conditions.

[00:12:28] Speaker 02:
If we were to agree with you, it would posture the veteran to be able to seek additional ratings if he has separate ratings now as opposed to a collective rating.

[00:12:41] Speaker 04:
That's correct.

[00:12:42] Speaker 04:
That's correct.

[00:12:43] Speaker 04:
And you're into your rebuttal time.

[00:12:46] Speaker 04:
Oh, I'm sorry.

[00:12:47] Speaker 04:
I am.

[00:12:48] Speaker 04:
I will retain the balance, unless there's further questions.

[00:12:51] Speaker 02:
Excuse me, Mr. Trump.

[00:12:52] Speaker 05:
Do you have any questions?

[00:12:54] Speaker 05:
Only to give you, when you get back up, I'm going to ask you essentially the same question about 7104D3 to help me out.

[00:13:02] Speaker 02:
You can answer the question now.

[00:13:03] Speaker 05:
Oh, all right.

[00:13:04] Speaker 05:
Just literally, again, we're in 7104D3.

[00:13:08] Speaker 05:
1 of 4D3 specifically.

[00:13:11] Speaker 03:
It is the use of the word appropriate.

[00:13:13] Speaker 03:
It is a qualifier.

[00:13:14] Speaker 03:
It is an adjective, whatever you want to describe it as, that adds language to the statute that the decisions not only have to include orders

[00:13:25] Speaker 03:
but that those orders must be appropriate.

[00:13:28] Speaker 03:
Now, Congress did not define the term appropriate.

[00:13:31] Speaker 03:
And that's why we presented the issue below to ask them to determine whether or not, in this circumstance, those orders which granted service connection as opposed to applied the diagnostic code were appropriate orders.

[00:13:50] Speaker 02:
Thank you.

[00:13:51] Speaker 02:
Councillor Faulkner, is that correct?

[00:13:53] Speaker 02:
Yes, Your Honor.

[00:13:54] Speaker ?:
OK.

[00:13:56] Speaker 00:
May I please the court?

[00:13:57] Speaker 00:
This is an unusual appeal because Mr. Steele is already receiving 100% disability plus a special monthly compensation.

[00:14:05] Speaker 00:
The VA also gave Mr. Steele a sympathetic reading of his claims and helped him develop those claims.

[00:14:11] Speaker 00:
Indeed, Mr. Steele was often successful at the board.

[00:14:16] Speaker 00:
While Mr. Steele has raised attenuated legal arguments here to this Court, there is simply no error that requires correction.

[00:14:22] Speaker 00:
And before I jump into the specific arguments in the briefs, I'd like to make a reference about Diagnostic Code 8045, because I believe that some of the assertions here were incorrect.

[00:14:32] Speaker 00:
Now that is a schedule of ratings for neurological conditions, including a traumatic brain injury.

[00:14:38] Speaker 00:
And the schedule itself has 10 facets.

[00:14:42] Speaker 00:
Each of those facets, including cognitive impairment and subject of symptoms, each of those facets can have a different rating, 0, 1, 2, 3, or total.

[00:14:52] Speaker 00:
Not every facet has up to total.

[00:14:55] Speaker 00:
So for example, the subject of symptoms at issue in this appeal has 2, which is equivalent to 40%.

[00:15:01] Speaker 00:
Mr. Steele has actually been rated in 2017 as 70% disabled based on his TBI.

[00:15:06] Speaker 00:
And that was based on the orientation facet, meaning he's disoriented as a time, space, people, situations, two of those four.

[00:15:13] Speaker 00:
So he already has that 70% rating, which raises the question, he's capped at 40% for the subject of symptoms.

[00:15:21] Speaker 00:
So it's unclear what could be done there.

[00:15:22] Speaker 05:
And does that overlapping with the primary concern, with the primary concern that he has medically?

[00:15:32] Speaker 05:
of what you just talked about.

[00:15:34] Speaker 00:
Yes, Your Honor.

[00:15:35] Speaker 00:
So this all gets to the point of, well, what about the combined ratings and rating these different conditions separately under diagnostic codes to arrive at a greater increased rating, which I already said he's, you know, Mr. Steele's at 100% with a special monthly compensation check already.

[00:15:49] Speaker 05:
And to follow up on what Judge Brannan at least asked, if you respond, I think all of us are wondering why opposing counsel is so interested in getting

[00:16:06] Speaker 00:
below us has done what they've done.

[00:16:23] Speaker 00:
not the forty percent is no average that's to the veterans benefit he gets that seventy percent and that he gets a separate rating now this is still in this case the twenty seventeen uh... rating decision he also had a fifty percent migraine uh... so that fifty percent migraine and that seventy percent tbis then combined and at that point i think you have ninety percent rating after the twenty twenty two board decision in the veterans court decision

[00:16:46] Speaker 00:
Mr. Steele actually got a 50% rating for his right-hand tremors, a 40% rating for his left-hand tremors.

[00:16:54] Speaker 00:
The AOJ, in that instance, maintained a 70% rating for TBI, but the overall rating, combining all those different diagnostic goals and ratings, ended up being 100%.

[00:17:04] Speaker 00:
Now, there are no separate diagnostic codes for fatigue, dizziness, and memory loss.

[00:17:09] Speaker 00:
Those are subject of symptoms, they're residuals of a TBI, they can also be residuals of other diseases.

[00:17:15] Speaker 00:
But there's, you know, my discussions with the VA, and certainly Mr. Seale hasn't identified any, but there's not a diagnostic code that could be, you know, 10% disabled based on this memory loss.

[00:17:23] Speaker 00:
Those are only to increase a potential rating with the TBI.

[00:17:27] Speaker 02:
In this particular case, is he left in a better position, let's say, if we were to agree with Mr. Carpenter?

[00:17:34] Speaker 00:
No, Your Honor.

[00:17:36] Speaker 00:
I think Mr. Seale's benefits have been maximized at every turn.

[00:17:39] Speaker 00:
I think the board has ruled in his favor consistently.

[00:17:42] Speaker 00:
The board consistently overturned, in fact, the AOJ decisions.

[00:17:46] Speaker 00:
It's remanded for further medical evaluations.

[00:17:49] Speaker 00:
And eventually, it's extended his effective date back to 2013.

[00:17:53] Speaker 00:
So I think the board did a good job here maximizing the benefits for Mr. Steele.

[00:17:58] Speaker 00:
And I think this is just kind of the practical speaking.

[00:18:01] Speaker 02:
Was AOJ required to rate separately?

[00:18:06] Speaker 00:
So for the subject of symptoms, Your Honor, that Jason has fatigue and memory loss?

[00:18:11] Speaker 00:
Right.

[00:18:12] Speaker 00:
So 8045, it states.

[00:18:16] Speaker 00:
The VA should separately evaluate those residuals if they, quote, may be evaluated under another diagnostic code.

[00:18:23] Speaker 00:
So the regulation itself says there has to be another diagnostic code.

[00:18:28] Speaker 00:
And there's just not a diagnostic code for dizziness, memory loss, and fatigue separate from these residuals.

[00:18:33] Speaker 00:
So no, they would not have to be rated separately.

[00:18:35] Speaker 02:
Those three were considered as a subject of... Is it legal authority for the AOJ to even do that if they wanted to?

[00:18:44] Speaker 00:
In that case, no, Your Honor.

[00:18:45] Speaker 00:
I don't think they could separately rate them if it's not a diagnostic code.

[00:18:49] Speaker 00:
And they would just be the residuals of the TBI.

[00:18:51] Speaker 00:
And I think, Judge Cunningham, to your question originally, no, those even wouldn't have to be service-connected.

[00:18:56] Speaker 00:
These are residuals.

[00:18:57] Speaker 00:
You know, as long as a veteran is making these statements and they're found credible at the AOJ, then you don't even need this service connection, which the board found in any case.

[00:19:05] Speaker 01:
Can you respond on the 7-1?

[00:19:07] Speaker 01:
I'll make sure I say the right numbers.

[00:19:09] Speaker 01:
I don't want to mess them up, right?

[00:19:10] Speaker 01:
on the 7104 D3 argument, right?

[00:19:14] Speaker 01:
So I want to say opposing counsel made an argument about pointing to the reference to appropriate in reference to the orders.

[00:19:22] Speaker 01:
Can you respond to that too?

[00:19:23] Speaker 00:
Yes, Your Honor.

[00:19:23] Speaker 00:
So this could be one of two arguments.

[00:19:25] Speaker 00:
I think the first is simple.

[00:19:27] Speaker 00:
Somehow it's inappropriate for the board to have said we're granting service connection for dizziness, memory loss, and fatigue in a single sentence.

[00:19:34] Speaker 00:
I just don't think there's any support for the proposition that those would have to be discussed in a separate sentence structure.

[00:19:42] Speaker 00:
The board granted the relief.

[00:19:43] Speaker 00:
It was in Mr. Seale's favor.

[00:19:45] Speaker 00:
And in this case, the board's decision on those issues, I think it's appendix 151 to 56, it's five pages long, it's actually pretty good, and it discusses the medical evidence, and it eventually comes out in his favor and says, you know, we're gonna grant service connections, secondary service connection as a residual of the TBI.

[00:20:00] Speaker 00:
Now the second issue there is, well, maybe saying it's not granting appropriate relief because you need to discuss diagnostic code 805, and you did not do that.

[00:20:08] Speaker 00:
But that's just a completely separate issue.

[00:20:10] Speaker 00:
The issue of service connection is different from the issue of rating.

[00:20:13] Speaker 00:
Mr. Steele is entitled to a rating in the first instance.

[00:20:16] Speaker 00:
That's under this court's precedent.

[00:20:17] Speaker 00:
It benefits him, because the board isn't going to do this in the first place.

[00:20:20] Speaker 00:
It goes back to the secretary.

[00:20:24] Speaker 00:
The secretary makes the decision in the first instance.

[00:20:26] Speaker 00:
It does the rating.

[00:20:27] Speaker 00:
And then the board can review it on appeal.

[00:20:29] Speaker 00:
He's entitled to an appeal.

[00:20:30] Speaker 00:
And in this case, that definitely bettered him, because the board was consistently ruling in his favor.

[00:20:34] Speaker 00:
So for the board to have done these rating things in the first instance would have deprived him of that appeal, actually.

[00:20:41] Speaker 00:
Again, though, I would note that there is no notice of disagreement with respect to a rating issue.

[00:20:46] Speaker 02:
Is a veteran still able to make this appeal?

[00:20:48] Speaker 00:
It's ongoing right now.

[00:20:50] Speaker 00:
It's ongoing right now.

[00:20:51] Speaker 00:
The TBI rating decision is below.

[00:20:54] Speaker 00:
I spoke with the VA.

[00:20:55] Speaker 00:
The VA informed me that it maintained the 70% rating for the traumatic brain injury.

[00:21:00] Speaker 00:
And the board is still yet to issue a decision.

[00:21:05] Speaker 02:
Would our decision today be material to what is going on right now?

[00:21:12] Speaker 00:
Your Honor, we didn't make a mootness argument here.

[00:21:13] Speaker 00:
I would say, so it's being litigated below right now, so there's really no reason, so there's no basis for the court to make a ruling on the rating issue, because first of all, there's no jurisdiction, there's no notice of disagreement, but yes, it'd be premature, because the AOJ and the board are addressing those issues right now.

[00:21:29] Speaker 02:
So you agree that the notice of disagreement is, that's material, and because of that, because there's not a notice, a non, then we lack jurisdiction on that particular issue.

[00:21:41] Speaker 00:
Yes.

[00:21:41] Speaker 00:
On any issue related to rating, there's simply no jurisdiction because there's not a notice of disagreement.

[00:21:47] Speaker 00:
And that's under this court's precedence.

[00:21:48] Speaker 00:
We set it and grant them.

[00:21:49] Speaker 00:
And it was very clear on that issue.

[00:21:51] Speaker 00:
Because the decision only reached the issue of service connection, it logically couldn't reach the issue, the downstream issue, of a rating decision.

[00:21:59] Speaker 01:
So at this point, it sounds like he's gotten all the relief he could get, in your opinion.

[00:22:04] Speaker 01:
Is that right?

[00:22:04] Speaker 00:
Yes, Your Honor.

[00:22:05] Speaker 00:
Yes, absolutely.

[00:22:06] Speaker 00:
Still at 100%.

[00:22:06] Speaker 00:
And I do think the board did a good job here in working in his favor.

[00:22:12] Speaker 05:
Thank you.

[00:22:19] Speaker 02:
Mr. Carpenter will restore you to three minutes.

[00:22:24] Speaker 05:
If you could address, though, respond directly to what the Opposite Council said.

[00:22:30] Speaker 05:
I'm at a loss of how he does, maybe I just don't do math, why he's at a loss if he's at 100%.

[00:22:38] Speaker 05:
I'm not following

[00:22:42] Speaker 05:
Why do you care?

[00:22:44] Speaker 03:
I care because I'll direct the court's attention to page two of the statement of facts and course of proceedings below in the opening brief, where it identifies the fact that nine years after discharge, he filed a claim for residuals of a head injury.

[00:23:00] Speaker 03:
At that particular point in time, TBI was not as well understood and was not separately identified as a disability to the extent in which it is now.

[00:23:11] Speaker 03:
And that original rating decision granted him service connection for a scar to his scalp and did not address or deal with the question of whether or not his head injury produced a disability other than apparently a scar.

[00:23:32] Speaker 02:
Now, that... So there may be future disabilities that you need to address.

[00:23:37] Speaker 02:
You're not going to concede he's at 100.

[00:23:40] Speaker 03:
That's right.

[00:23:41] Speaker 03:
And what I want to do is get lined up everything that he is entitled to.

[00:23:45] Speaker 03:
And then we go back and argue that these should have been granted at least from 1991.

[00:23:50] Speaker 02:
Are you representing the veteran now?

[00:23:54] Speaker 02:
Yes.

[00:23:54] Speaker 02:
OK.

[00:23:54] Speaker 02:
Are you making those arguments below?

[00:23:57] Speaker 02:
Yes.

[00:23:58] Speaker 02:
Well, excuse me.

[00:23:59] Speaker 03:
We're not making those arguments yet below, because we do not have identified, and we have been continually having problems

[00:24:06] Speaker 03:
with the VA mushing together in a single rating as opposed to the separate ratings that are called for by this regulation.

[00:24:15] Speaker 03:
And that's the key to this case, Your Honor, is to understand that notwithstanding the fact that the government said... Why isn't that a question for Congress to answer, not us?

[00:24:26] Speaker 03:
Because the

[00:24:28] Speaker 03:
statutes are clear that under 7104A it is the board's affirmative obligation to address all potentially applicable provisions of law and regulation.

[00:24:41] Speaker 03:
And in this case, this diagnostic code was the applicable one because the issues of service connection were not at issue.

[00:24:50] Speaker 03:
What was at issue was an entitlement to recognition of these additional conditions for rating purposes only.

[00:24:58] Speaker 03:
And yes, a mistake was made by not pleading that from the beginning.

[00:25:05] Speaker 03:
But this is a system that is wrought with mistakes.

[00:25:08] Speaker 03:
And the only way you could correct those mistakes is by asking for judicial review to order the agency to comply with the law.

[00:25:17] Speaker 03:
The agency, the board, did not comply with the law when it made the board decision in this case.

[00:25:24] Speaker 03:
It appears to have done so because it appears to grant him multiple awards of service connection.

[00:25:31] Speaker 03:
But in so doing, he is now in the same trap he was with the PTSD.

[00:25:37] Speaker 03:
And this is an issue of both maximizing ratings

[00:25:41] Speaker 03:
And the government got up here and bragged about how the fact they had granted service connection for migraines.

[00:25:46] Speaker 03:
They did so as a separate condition.

[00:25:49] Speaker 03:
But migraines is one of the specific conditions identified by the VA as a residual of TBI.

[00:25:57] Speaker 03:
So it doesn't deserve a separate rating.

[00:26:00] Speaker 03:
I'm sorry.

[00:26:01] Speaker 03:
Thank you very much for your time.

[00:26:03] Speaker 02:
We have the arguments.

[00:26:05] Speaker 02:
This case is now going into submission.