[00:00:00] Speaker 00:
We will hear argument next in number 232364, Combs against Collins.

[00:00:09] Speaker 02:
Good morning, and may it please the court.

[00:00:11] Speaker 02:
The RO incorrectly applied the law in August 2000 when it didn't rate Mr. Combs GERD symptoms by analogy under 4.20.

[00:00:19] Speaker 02:
Then when reviewing his Q claim, the Veterans Court applied the wrong legal standard.

[00:00:24] Speaker 02:
It applied the met or approximated standard, and that's from 4.7.

[00:00:27] Speaker 02:
But 4.20 applies here.

[00:00:30] Speaker 02:
And that standard is closely analogous.

[00:00:33] Speaker 02:
So the Veterans Court used that wrong legal standard to find no error in the August 2000 rating decision.

[00:00:39] Speaker 02:
And then it stopped there.

[00:00:40] Speaker 02:
So no one, not the board and not the Veterans Court, has made a factual finding as to whether the outcome would have been manifestly different if the right standard were to be applied in the first instance.

[00:00:51] Speaker 00:
This is an important perspective.

[00:00:54] Speaker 00:
If I remember right, tell me if I'm misremembering.

[00:00:57] Speaker 00:
At least in your reply brief to the Veterans Court,

[00:01:00] Speaker 00:
You positively asked for application of an approximation standard.

[00:01:06] Speaker 02:
I asked for both at the Veterans Court.

[00:01:08] Speaker 00:
Now, our argument- I didn't see any argument that was saying analogy is different from approximation.

[00:01:16] Speaker 00:
Approximation isn't enough.

[00:01:18] Speaker 00:
You have to do analogy.

[00:01:20] Speaker 00:
Here's why that's different.

[00:01:21] Speaker 00:
I think on this, in invoking the analogy provision, you expressly talked about the approximation.

[00:01:28] Speaker 02:
I expressly talked about the two separate concepts.

[00:01:31] Speaker 02:
Anytime I use the term approximate, I then followed up with or by analogy.

[00:01:35] Speaker 02:
For example, at the opening brief, it's appendix pages 188 through 191, I stated he explained that Melana is analogous to his diarrhea, both contemplate blood in the stool.

[00:01:51] Speaker 02:
And then I made another analogy of the appendix at page 189.

[00:01:54] Speaker 02:
And then I clarified again at the reply brief at appendix 201.

[00:01:58] Speaker 02:
Auro had a duty to rate either verbatim, which would be meta-approximated, that's the met part of meta-approximated, or by analogy and maximize benefits.

[00:02:08] Speaker 02:
Or by analogy, that's apply 4.20, in the instances where he doesn't actually meet the higher, the more difficult standard were he being rated directly.

[00:02:17] Speaker 02:
And then, after making the analogy, maximize benefits.

[00:02:27] Speaker 02:
Your Honors, there's been no factual finding here as to whether, had the right standard been applied, the outcome would have been manifestly different, which is very important in this Q case, because we're, of course, not asking this court to review any facts.

[00:02:41] Speaker 02:
But no facts have been found, because the error, the legal standard applied to what the RO did in August 2000, that was analyzed under the wrong legal standard.

[00:02:52] Speaker 02:
The 4.7 met or approximated legal standard

[00:02:56] Speaker 02:
when Mr. Combs was supposed to be held to the 4.20 legal standard by analogy symptom by symptom.

[00:03:03] Speaker 02:
So since no one has determined whether that error took place by applying the correct legal standard in the first place, no one has made the subsequent Q analysis of whether that error would have been outcome determinative.

[00:03:14] Speaker 02:
So the court should vacate and remand for that result.

[00:03:18] Speaker 02:
It should instruct the Veterans Court to instruct the board to apply the right standard.

[00:03:23] Speaker 02:
and then make the crucial fact finding whether applying 4.20 manifestly changes the outcome of the August 2000 rating decision.

[00:03:34] Speaker 04:
I'm a little puzzled.

[00:03:37] Speaker 04:
Can you show me in your blue brief where you're arguing that 4.7 was improperly applied?

[00:03:46] Speaker 01:
Sure, Judge.

[00:03:48] Speaker 01:
I didn't argue that 4.7

[00:03:51] Speaker 04:
Well, that's the argument you just got up here and made, that the RO improperly applied 4.7 rather than 4.20.

[00:03:59] Speaker 04:
And I thought the gist of this case was 4.20 applies.

[00:04:03] Speaker 04:
The government agrees that 4.20 applies.

[00:04:06] Speaker 04:
The Veterans Court found no CUE in the board's determination that the rating by analogy under 4.20 was not clearly erroneous here.

[00:04:16] Speaker 02:
OK.

[00:04:16] Speaker 02:
I think I understand your question now, Judge.

[00:04:18] Speaker 02:
So at the Veterans Court, we were arguing two alternate things.

[00:04:22] Speaker 02:
And we're only arguing one now.

[00:04:24] Speaker 02:
At the Veterans Court, I mentioned and argued that Mr. Combs meets, I use the term verbatim.

[00:04:30] Speaker 04:
Several of these symptoms listed in DC 70 through 40 right and the Veterans Court said there's no clear error and then that's not right And you're not challenging that because that's application of a lot of factor fact.

[00:04:41] Speaker 02:
Yes So what's your argument?

[00:04:43] Speaker 02:
I also said at the Veterans Court or by analogy and then I made the analogies and the analogies have never taken place That's the analysis that has to happen the legal standard under 4.20 closely analogous

[00:04:56] Speaker 02:
that has never been applied to Mr. Cohn's symptoms when he was rated under DC 7346.

[00:05:02] Speaker 04:
And then the Veterans Court looked at it and said it doesn't, you know, approximate this catch-all provision.

[00:05:09] Speaker 04:
Isn't that what an analogy would be?

[00:05:10] Speaker 02:
No, meta-approximate is not the same as an analogy.

[00:05:14] Speaker 04:
I don't understand your argument here at all because obviously if we're going by analogy we're not looking directly at the same symptoms because if it was the same symptoms it would probably be the same condition and you wouldn't have analogy.

[00:05:29] Speaker 04:
So it can't be that they have to do that it just has to approximate the overall picture of that

[00:05:36] Speaker 04:
I mean, you can disagree with that, but what else would there be?

[00:05:42] Speaker 04:
What is it to rate by analogy if it's not to look at the severity encompassed in the particular percentage criteria and see if whether the condition by analogy approximates that overall disability picture?

[00:05:56] Speaker 02:
There's a difference in kind between approximation and analogy.

[00:06:00] Speaker 04:
What's your legal standard then?

[00:06:01] Speaker 04:
What is your legal articulation of what the rating by analogy would require the RO and the board to do that they didn't do here?

[00:06:09] Speaker 02:
The words in 4.20, the words in the regulation.

[00:06:13] Speaker 02:
closely analogous.

[00:06:15] Speaker 02:
It's a completely different regulation, 4.7, that uses the word approximate.

[00:06:19] Speaker 04:
And 4.7 speaks to... I don't care because you didn't make this 4.7 argument in your brief.

[00:06:24] Speaker 04:
I don't even see a citation to 4.7.

[00:06:26] Speaker 02:
At the Veterans Court?

[00:06:27] Speaker 04:
At the blue brief.

[00:06:28] Speaker 04:
And if you haven't made it to me, I'm not going to listen to it.

[00:06:31] Speaker 04:
I don't care if you made it to the Veterans Court.

[00:06:33] Speaker 02:
The fireplace or swimming pool's analogy, your honor.

[00:06:37] Speaker 04:
No.

[00:06:37] Speaker 04:
So tell me, if 4.2 requires rating by analogy, what does that mean as a matter of law?

[00:06:46] Speaker 02:
4.2 requires rating by analogy, symptom by symptom, as a matter of law.

[00:06:51] Speaker 02:
We know that from Webb.

[00:06:52] Speaker 02:
However, we're not arguing this is a Webb violation.

[00:06:56] Speaker 02:
We're arguing this is a plain language of 4.20 when

[00:07:00] Speaker 02:
The RO, and then in turn the Board and the Veterans Court, required Mr. Webb to meet the identical symptoms rated.

[00:07:07] Speaker 02:
For example, the weight loss, weight gain issue.

[00:07:09] Speaker 02:
Is weight loss approximate to weight gain?

[00:07:12] Speaker 02:
No.

[00:07:12] Speaker 02:
They are two opposite things.

[00:07:14] Speaker 02:
Is negative 10 pounds approximately plus 100 pounds?

[00:07:17] Speaker 02:
No, Your Honor.

[00:07:18] Speaker 02:
They're not.

[00:07:19] Speaker 02:
Because.

[00:07:19] Speaker 04:
And they're not analogous either.

[00:07:21] Speaker 02:
No, they are analogous, Your Honor.

[00:07:22] Speaker 02:
We made that argument in the brief.

[00:07:24] Speaker 04:
If that's your position, then it's standard plus.

[00:07:27] Speaker 02:
The standard is located in 4.20, closely analogous.

[00:07:30] Speaker 02:
Both.

[00:07:31] Speaker 04:
How is weight loss closely analogous to weight gain?

[00:07:35] Speaker 02:
As we mentioned in our briefs at this court, both contemplate changes in the weight due to the underlying condition that Mr. Combs is suffering from and then being rated for by analogy to hiatal hernia.

[00:07:47] Speaker 04:
Can you point to me in the Veterans Court's decision where you think it has legal error?

[00:07:53] Speaker 02:
When it agreed with the board that Mr. Combs did not meet or approximate.

[00:07:58] Speaker 02:
That's the legal standard that it used.

[00:08:00] Speaker 02:
The legal standard should have been, was not closely analogous.

[00:08:04] Speaker 04:
Do you like if there's a particular language you're focusing on?

[00:08:09] Speaker 02:
In the memorandum decision, that would be page four of the memorandum decision.

[00:08:17] Speaker 02:
The board concluded that Q hadn't been demonstrated because Mr. Cohn did not unabatedly establish the criteria for hiring in the year 746 were met or approximated.

[00:08:32] Speaker 02:
Now, the standard, if the Veterans Court had said, or actually, honestly, if the board, the original fact finder had said, these analogies don't exist, your analogies fail, then we wouldn't be here at this court.

[00:08:46] Speaker 02:
But the analogy was never made.

[00:08:53] Speaker 01:
OK.

[00:08:53] Speaker 01:
All right.

[00:08:54] Speaker 01:
Thank you.

[00:08:54] Speaker 01:
Thank you.

[00:09:09] Speaker 03:
Your Honor, may it please the court.

[00:09:10] Speaker 03:
This court should affirm the Veterans Court decision.

[00:09:13] Speaker 04:
Before you get to responding, I'm a little worried that the Veterans Court is going to go down this path of overusing George.

[00:09:22] Speaker 04:
Does the government agree?

[00:09:23] Speaker 04:
I mean, this does not seem like it's a George situation.

[00:09:27] Speaker 04:
This is the regulation and whatever the Veterans Court or the Linderman or whatever case has been the law forever.

[00:09:36] Speaker 04:
The fact that we did something in Webb that re-emphasized that doesn't mean that Webb is new law.

[00:09:45] Speaker 04:
that they don't have to follow, right?

[00:09:47] Speaker 03:
Yes, Your Honor, exactly.

[00:09:49] Speaker 04:
Because that would mean every time we interpreted a pre-existing regulation that hadn't been specifically interpreted in that way before, that it would be a George issue.

[00:09:58] Speaker 04:
And that just can't be the case.

[00:10:00] Speaker 03:
Well, I think there's two things going on there.

[00:10:02] Speaker 03:
I think it can be a thing that's not applied backward without being new law.

[00:10:07] Speaker 04:
But we don't have that issue here.

[00:10:10] Speaker 04:
If the Veterans Court's decision solely rests on that basis here,

[00:10:14] Speaker 04:
it would probably be legal error.

[00:10:17] Speaker 04:
Well, I don't know.

[00:10:18] Speaker 04:
I mean, I want the government to understand that if we start seeing the Veterans Court making this George argument, it's going to lose these cases.

[00:10:26] Speaker 04:
Because George was very specific, where there had been a pre-existing interpretation.

[00:10:29] Speaker 04:
That was the law at the time.

[00:10:32] Speaker 04:
And then this court changed that interpretation.

[00:10:34] Speaker 04:
And the Supreme Court said, well, that can't be cute.

[00:10:37] Speaker 04:
But there was no pre-existing interpretation in Webb that this court changed.

[00:10:42] Speaker 04:
We just found that

[00:10:45] Speaker 04:
the articulation there was wrong, but it wasn't that the regulation itself had changed.

[00:10:52] Speaker 03:
Yes, Your Honor.

[00:10:52] Speaker 03:
I mean, the court and Webb just applied landing them, and I think it's important to go... Okay, that's fine.

[00:10:59] Speaker 04:
Can you make sense of the argument that there's a difference between approximation and analogous?

[00:11:06] Speaker 03:
Yes, Your Honor.

[00:11:06] Speaker 03:
Stepping back, I think the issue is that the

[00:11:10] Speaker 03:
The opposing council is trying, or Mr. Combs is trying to say that 4.20 is the way by which you analyze the condition, and it's not.

[00:11:18] Speaker 03:
It's 4.7.

[00:11:19] Speaker 03:
And there, Mr. Combs is looking at 4.7 and saying, you can't apply

[00:11:25] Speaker 03:
met or approximate under 4.7, you have to do analogous under 4.20, which is Lendenman.

[00:11:32] Speaker 03:
But 4.20, Your Honors, only goes to selecting the diagnostic code.

[00:11:38] Speaker 03:
And there is no dispute here over what the diagnostic code is.

[00:11:41] Speaker 03:
The diagnostic code is 7346.

[00:11:43] Speaker 03:
It's hiatal hernia.

[00:11:46] Speaker 03:
And that was applied analogously through 4.20.

[00:11:51] Speaker 03:
to Mr. Combs.

[00:11:53] Speaker 03:
However, once you get that, that you are in hiatal hernia, code 7436, you are now doing the analysis under

[00:12:05] Speaker 03:
you're now doing the analysis under 4.7, 38 CFR 4.7, which is the higher of two evaluations.

[00:12:11] Speaker 04:
So I think there was... And there's the board... I mean, in the original rating decision, they found he was entitled to 10% by analogy.

[00:12:21] Speaker 04:
In order to show that he's entitled to a higher percentage, he has to show that his condition

[00:12:28] Speaker 04:
matches one of those higher levels.

[00:12:30] Speaker 04:
I'm intentionally using the word approximate, but I think that's the way you do it, right?

[00:12:34] Speaker 03:
Yes, Your Honor.

[00:12:36] Speaker 03:
And originally, he wanted to, back in August 2000, this was to 30%.

[00:12:43] Speaker 03:
And then, in the Q claim, it became 60%.

[00:12:47] Speaker 03:
And if you go back and look at his arguments, at Mr. Combs' arguments at the regional office level, and then you go look at his arguments at the board level as well, they sort of track along.

[00:12:58] Speaker 03:
He's talking about his symptoms.

[00:13:00] Speaker 03:
He's saying, I met these criteria.

[00:13:03] Speaker 03:
And that's sort of a 4.7 argument.

[00:13:07] Speaker 03:
Sort of at the Veterans Court, and then especially up in this court,

[00:13:13] Speaker 03:
If you squint at the Veterans Court brief, you can see a discussion of approximate what opposing counsel was just speaking to.

[00:13:19] Speaker 03:
But then at this court, in the reply, it comes to the full bloom of the argument that they are making is that 4.20 is the standard.

[00:13:27] Speaker 03:
That's just not correct, Your Honor.

[00:13:30] Speaker 03:
4.20 is the standard, and I'm repeating myself now, but just to make it plain.

[00:13:33] Speaker 04:
It tells you, if you don't have a list of condition, how it gets

[00:13:38] Speaker 04:
done, what criteria would you look to, and you would look to an analogous one.

[00:13:42] Speaker 04:
Exactly, Your Honor.

[00:13:43] Speaker 04:
And Your Honor.

[00:13:44] Speaker 00:
But why would the analogy directive of 420 stop once you've landed on the right code as opposed to the right section of the code, namely the different rating criteria?

[00:13:59] Speaker 03:
Well, if you look at 4.20, Your Honor,

[00:14:02] Speaker 03:
And we can compare it to 4.7.

[00:14:05] Speaker 00:
So we have an unlisted condition.

[00:14:06] Speaker 00:
So it doesn't have its own code.

[00:14:09] Speaker 00:
It's permissible to rate under a closely related disease or injury under certain conditions.

[00:14:18] Speaker 00:
So why do you not, for that purpose, the closely related analogy, why do you treat

[00:14:29] Speaker 00:
the entirety of what's in 7346 as a unit that can't be divided up as opposed to, and there are three levels within that unit.

[00:14:41] Speaker 00:
And you ask the same analogy question.

[00:14:45] Speaker 00:
Are you in level 60, 30, 10?

[00:14:49] Speaker 03:
Well, the government's position, Your Honor, is that 4.20, with the language, it will be permissible to rate under those to choosing

[00:14:58] Speaker 03:
which diagnostic code.

[00:14:59] Speaker 03:
Once you're within the diagnostic code, then you're at 4.7.

[00:15:03] Speaker 03:
And 4.7 talks about where there is a question as to which of two evaluations shall be applied.

[00:15:10] Speaker 03:
The higher evaluation will be assigned if the disability picture more or nearly approximates the criteria required for that rating.

[00:15:18] Speaker 03:
Otherwise, the lower rating will be assigned.

[00:15:21] Speaker 03:
That's the standard that's used, and that's the standards that's referred to

[00:15:25] Speaker 03:
I believe, by the Board and the Veterans Court.

[00:15:30] Speaker 04:
And that's the standard that you use when the rating actually specifically applies, not by analogy.

[00:15:36] Speaker 03:
Yes, Your Honor.

[00:15:38] Speaker 03:
And I think the reason this sort of gets confused is if you look at the Veterans Court decision, this goes to what Judge Hughes was saying, if you looked at the Veterans Court decision and their discussion of Webb, they sort of say,

[00:15:51] Speaker 03:
They sort of discuss 4.20 and 4.7, but then if you look at it, there's not really an answer as to how it would be different or how this 4.20 would apply.

[00:16:02] Speaker 03:
And I think that goes to what Judge Hughes was asking opposing counsel is, how would you actually do this?

[00:16:07] Speaker 03:
And the Veterans Court goes so far as to say, there is no explanation in Webb of how you would do this.

[00:16:14] Speaker 03:
And I think that goes to Judge Hughes.

[00:16:16] Speaker 04:
I mean, Webb's point, I think, is if we're looking at the 60% under the analogy, we can't say he doesn't meet it because he doesn't have all the symptoms.

[00:16:27] Speaker 04:
Because you wouldn't have all the symptoms necessarily by analogy.

[00:16:31] Speaker 04:
But you could look and say, it doesn't approximate the constellation of symptoms or the more general category of symptoms.

[00:16:41] Speaker 04:
Symptom combinations productive of seer impairment of health Yes, you do.

[00:16:46] Speaker 04:
Do you have any kind of?

[00:16:48] Speaker 04:
General understanding you may not of I would think that when we're talking about analogy We're almost always going to be looking at the more general You know things like the 30% is considerable impairment of health and the 60% is severe impairment of health and so

[00:17:08] Speaker 04:
If it's not the specific symptoms, then it's going to be the more general picture to have a more specific rating.

[00:17:17] Speaker 03:
Yes, Your Honor, but I think that comes from 4.7.

[00:17:19] Speaker 03:
I think it comes from the more nearly approximates language as opposed to the analogous language in 4.20.

[00:17:28] Speaker 03:
And I think that's the way it's done in practice.

[00:17:34] Speaker 03:
Your Honor touched on something there, and I'll just flow into that real quickly to touch on it, is there's been an argument made at various times about how the government required them to meet exactly the standard of DC 7436, and that has not been the case at any level of this.

[00:17:52] Speaker 03:
The RO analyzed it.

[00:17:55] Speaker 03:
and basically did an approximation.

[00:17:58] Speaker 03:
They weren't going line by line saying, you have to have this, you have to have this, you have to have this.

[00:18:02] Speaker 03:
And that was done at every level.

[00:18:04] Speaker 03:
So there is no factual basis.

[00:18:06] Speaker 03:
In fact, the way the identical language came is that at the Veterans Court, Mr. Combs stated that his conditions basically met everything

[00:18:17] Speaker 03:
verbatim, and then the Veterans Court, in their opinion, said, no, you do not meet things verbatim.

[00:18:22] Speaker 03:
It was never the government holding them to a verbatim standard.

[00:18:26] Speaker 03:
So I wanted to allay that confusion.

[00:18:31] Speaker 03:
It seems like Your Honors have a good grasp of this.

[00:18:34] Speaker 03:
I will not belabor the points anymore.

[00:18:37] Speaker 03:
If there are no further questions, the government respectfully requests that this Court affirm the Veterans Court decision.

[00:18:42] Speaker 00:
Thank you.

[00:19:00] Speaker 02:
There's one important thing, Your Honor, that I'd like to clarify here.

[00:19:05] Speaker 02:
That is that when I discuss met or approximated in opposition to closely analogous, I'm referring to two separate regulations.

[00:19:14] Speaker 02:
I'm not referring to a thesaurus or something like that.

[00:19:17] Speaker 02:
Now, when 4.20 discusses closely analogous, it says, when an unlisted condition is encountered, it will be permissible to rate

[00:19:26] Speaker 02:
under a closely related disease.

[00:19:28] Speaker 02:
Not just select a diagnostic code under a closely related disease, but rate under it.

[00:19:33] Speaker 02:
After selecting it, rate under it.

[00:19:35] Speaker 02:
The performance of rating means going symptom by symptom.

[00:19:38] Speaker 02:
And how do we do that?

[00:19:39] Speaker 02:
Under 4.20, we do that through the closely analogous standard, through the anatomical localization, functions effective, and symptomology.

[00:19:47] Speaker 00:
This somehow feels like a kind

[00:19:53] Speaker 00:
question which regulation applies at which stage, getting to the right code and then within the right code.

[00:20:00] Speaker 00:
Is there a practice reflected in board or veterans court decisions?

[00:20:09] Speaker 02:
Yes, Judge.

[00:20:10] Speaker 02:
I cited two board decisions around August 2000 in my briefing at this court where it did that.

[00:20:16] Speaker 02:
It made the analogies to the symptoms themselves.

[00:20:19] Speaker 02:
at the level of the symptom listing, the percentage levels that are listed in the diagnostic code.

[00:20:24] Speaker 02:
To answer your first more general question.

[00:20:26] Speaker 04:
But even if the analogies to the symptoms are there, they still have to approximate the overall higher level rating.

[00:20:32] Speaker 02:
Yes, Your Honor.

[00:20:33] Speaker 04:
And if the board determines that they don't approximate the higher overall rating, which I think the board did here and said it wasn't a severe impairment of health, then what's wrong with that?

[00:20:45] Speaker 02:
What's wrong with that is that it didn't first make the analogy.

[00:20:49] Speaker 02:
Now, if the board had made an analogy.

[00:20:51] Speaker 04:
Do you really think the VA intended for, for disabilities that are directly controlled by a rating schedule to be rated differently in terms of severity than ratings by analogy?

[00:21:02] Speaker 04:
Because that's the thrust of your argument.

[00:21:04] Speaker 02:
No, no, Judge.

[00:21:05] Speaker 04:
If I understand your question- Well, 4.7 is what tells you how to rate severity.

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

[00:21:10] Speaker 02:
For veterans who are being rated by analogy, first 4.20 applies and then yes, 4.7 applies also.

[00:21:16] Speaker 02:
Once we have made the analogies, let's say all the analogies are made for a veteran and he might fit somewhere between a 30% and a 60%.

[00:21:23] Speaker 02:
4.27 says the higher two ratings, whatever one he meets or closely approximates, he's supposed to get the higher one.

[00:21:33] Speaker 02:
A pass for veterans being rated by analogy, like Mr. Combs, rate under closely related disease.

[00:21:39] Speaker 02:
Rate under it.

[00:21:39] Speaker 02:
Don't just select the code.

[00:21:41] Speaker 02:
Rate under it.

[00:21:42] Speaker 02:
4.20 has to happen first.

[00:21:44] Speaker 02:
The analogy has to happen first.

[00:21:47] Speaker 02:
And then 4.7 applies the higher of two ratings.

[00:21:50] Speaker 04:
Now, also the language or- Well, but here they found that you don't meet the criteria for the 60%.

[00:21:58] Speaker 02:
by finding an argument thirty percent no we didn't because when we went symptom by symptom he looked a lot more like the sixty percent well i mean that makes no sense to me either because how can you possibly have the higher rating and not have the intermediate rating because uh... dvd seventy three forty six has

[00:22:15] Speaker 02:
a set of symptoms it lists at 60 that it doesn't list at all at 30.

[00:22:20] Speaker 04:
Sure, but it also has the severe impairment versus modern impairment.

[00:22:23] Speaker 02:
It does, and we're not arguing that.

[00:22:24] Speaker 04:
If those symptoms equate severe impairment, then they clearly include the modern impairment.

[00:22:28] Speaker 02:
Well, they don't equate them.

[00:22:29] Speaker 02:
It's an alternative.

[00:22:30] Speaker 02:
The secretary even states that as an alternative in the brief or other symptom combinations productive of severe impairment of health.

[00:22:36] Speaker 02:
And we're not arguing about that because it reads a whole lot like that was a finding.

[00:22:39] Speaker 02:
We're not asking this court to review.

[00:22:41] Speaker 02:
That's an or, though.

[00:22:42] Speaker 02:
That's an alternate route to a 60% rating.

[00:22:45] Speaker 02:
or at least a 30% rating.

[00:22:46] Speaker 02:
But that's not the route we're arguing about at this point.

[00:22:49] Speaker 04:
Do you know if you have a claim for new material evidence or anything like that on this condition?

[00:22:57] Speaker 02:
Knowing Mr. Combs' claims history, he probably could.

[00:23:03] Speaker 02:
I think so.

[00:23:03] Speaker 04:
But you don't presently.

[00:23:06] Speaker 02:
Oh, no.

[00:23:07] Speaker 02:
No.

[00:23:07] Speaker 02:
I don't represent Mr. Combs at the agency, but I'm not aware of one.

[00:23:09] Speaker 02:
I can say that.

[00:23:10] Speaker 02:
That's the best I can say that, Your Honor.

[00:23:14] Speaker ?:
OK.

[00:23:15] Speaker 02:
Thank you.

[00:23:16] Speaker 00:
Thank you.

[00:23:17] Speaker 00:
Thanks a lot council cases submitted