[00:00:00] Speaker 00:
We have four arguments this morning, and we will begin with number 232061, Regis against Collins.

[00:00:11] Speaker 02:
Good morning.

[00:00:12] Speaker 02:
Your Honor, may it please the Court, Kenny DeHawkes, for repellent, Mr. Regis.

[00:00:16] Speaker 02:
On behalf of Mr. Regis, I want to thank the Court for this opportunity to present his appeal.

[00:00:21] Speaker 02:
This appeal asks the Court to interpret Diagnostic Code 5003 in so far as it directs VA to rate arthritis on the basis of limitation of motion.

[00:00:30] Speaker 02:
In this case, there are several preliminary aspects that are undisputed.

[00:00:33] Speaker 02:
Mr. Regis, the board found that he has limited flexion to five degrees, and that that is a non-compensable rating under the appropriate diagnostic code 5261.

[00:00:43] Speaker 00:
Limited.

[00:00:44] Speaker 00:
Extension?

[00:00:45] Speaker 00:
Yes, Sean.

[00:00:46] Speaker 00:
I thought you said flexion.

[00:00:48] Speaker 02:
Oh, if I did, Your Honor, I apologize.

[00:00:52] Speaker 02:
Right, so the flexion is already rated 10%, and we're looking for a non-compensable

[00:00:57] Speaker 02:
a 10% rating for the extension.

[00:01:00] Speaker 02:
The parties also agree that when there is limited collection and limited extension, VA regulations require VA to separately rate each of them.

[00:01:09] Speaker 02:
The dispute here comes from the language of the regulation on what exactly the diagnostic code 5003 compensates.

[00:01:20] Speaker 00:
And just do you think that the Veterans Court

[00:01:27] Speaker 00:
decided this question and related to that?

[00:01:31] Speaker 00:
Do you think that you raised this question to the Veterans Court, which may be two separate things?

[00:01:36] Speaker 02:
I think they are two separate things, Your Honor.

[00:01:40] Speaker 02:
And I think that the answer to both of them is yes.

[00:01:43] Speaker 02:
Number one, Mr. Regis did ask for a specifically requested a 10% rating for the limited extension.

[00:01:49] Speaker 02:
And the Veterans Court, when it reviewed the board's finding to assign a noncompensable rating,

[00:01:57] Speaker 00:
failed to correctly apply the law because it overlooked that arthritis is rated under 50503 but you didn't did you I don't I don't remember that you presented the specific argument about 5003 that you are making here there was there were two footnotes in your brief that cited what OGC opinion or opinions that off was more than one

[00:02:25] Speaker 00:
for a different point about 503 but not this point.

[00:02:31] Speaker 02:
No, Your Honor, this specific interpretation of the regulation was not presented to the Veterans Court.

[00:02:39] Speaker 02:
because Mr. Regis had asked for a 10% rating for the limited extension.

[00:02:45] Speaker 02:
And when we look at it.

[00:02:46] Speaker 03:
Is there any attempt to argue this in the alternative?

[00:02:50] Speaker 03:
I mean, sometimes that happens.

[00:02:51] Speaker 03:
You'd ask for a 10% rating under one diagnostic code.

[00:02:55] Speaker 03:
And then if you have a backup argument that would say, even if it's zero, I still deserve 10%, then you would present it as an alternative argument.

[00:03:03] Speaker 03:
And I don't see where that was made.

[00:03:05] Speaker 02:
It wasn't explicit, Your Honor, but I think when you look at specifically how 5003 rates arthritis, that it would be an implicit acknowledgement that either you meet the 10 degrees under 5261 for a 10% rating,

[00:03:21] Speaker 02:
Or it's a 10% rating because it's noncompensable.

[00:03:25] Speaker 03:
One of the concerns I have is that there's at least two interpretation arguments for 5003 that would suggest that it doesn't apply necessarily.

[00:03:34] Speaker 03:
It's not clearly applying.

[00:03:36] Speaker 03:
One of them is argument made by the government.

[00:03:41] Speaker 03:
So in other words, there needs to be an interpretation to determine whether it would even apply.

[00:03:46] Speaker 03:
So I'm having a hard time understanding why it wouldn't have to be raised.

[00:03:51] Speaker 03:
expressly, instead of implicitly.

[00:03:55] Speaker 02:
Yes, Your Honor.

[00:03:56] Speaker 02:
I mean, I think that when you look at the pleadings in conjunction with what the Veterans Court said, that it – the Veterans Court said that

[00:04:06] Speaker 02:
a 10 degrees or more limited flexion, and I'm looking on page six, seven of the appendix, is required for a compensable rating under Diagnostic Code 5261.

[00:04:17] Speaker 02:
There's simply no error in how the board treated the Veteran's Limited Right Knee Extension.

[00:04:23] Speaker 02:
But under 50.03,

[00:04:25] Speaker 02:
There was error, because when it doesn't meet the compensable requirements for the diagnostic, for the limited motion for that joint, then Diagnostic Code 5003 requires a 10% rating.

[00:04:38] Speaker 03:
How can we say that the Veterans Court should have been aware that you were making that argument?

[00:04:47] Speaker 02:
The reason that the Veterans Court heard in this case, Your Honor, is that arthritis must be rated under 5003.

[00:04:58] Speaker 02:
There's no other diagnostic code that's possible.

[00:05:00] Speaker 02:
As we pointed out in our briefing, 4.27, 4.21.

[00:05:05] Speaker 02:
I think 4.27 in particular very explicitly says is with diseases, preference is to be given to the number assigned to the disease itself.

[00:05:16] Speaker 02:
if the ratings determine on the basis of residual conditions.

[00:05:18] Speaker 02:
And then the next sentence, it highlights another form of arthritis, rheumatoid, which is 5002, which is, for all intents and purposes, the same, just a different type of arthritis.

[00:05:29] Speaker 02:
And so the Veterans Court did not have the discretion to rate it or to analyze it under a different diagnostic code.

[00:05:36] Speaker 03:
I don't think the parties raise this necessarily, but 5003 says degenerative arthritis other than post-traumatic, right?

[00:05:46] Speaker 02:
Correct, Your Honor.

[00:05:53] Speaker 02:
It does say that.

[00:05:54] Speaker 03:
Was your client diagnosed with post-traumatic?

[00:06:00] Speaker 02:
I am not certain on that specific factor, Your Honor.

[00:06:04] Speaker 02:
I think that he has degenerative arthritis.

[00:06:12] Speaker 02:
He has degenerative arthritis in the knee and the findings of the VA before it came up to court acknowledged that the arthritis was a residual of his service injuries.

[00:06:27] Speaker 00:
The government has an argument about disagreeing on the merits with your interpretation of

[00:06:34] Speaker 00:
So put aside for now the question of whether the issue was raised, just on the merits.

[00:06:43] Speaker 00:
What's your answer to the government's argument that 5003 just doesn't apply here in the way that you say it does?

[00:06:55] Speaker 02:
Right.

[00:06:56] Speaker 02:
So I think that the president.

[00:06:58] Speaker 00:
I think it has something to do with this joint is already being rated.

[00:07:02] Speaker 00:
Correct.

[00:07:03] Speaker 02:
And the way I understand their argument is that limited motion is just limited motion.

[00:07:10] Speaker 02:
And what that interpretation does.

[00:07:12] Speaker 00:
Whether it's straightening or bending.

[00:07:13] Speaker 02:
Correct your honor.

[00:07:14] Speaker 02:
I mean it's it's I understand the argument to say that arthritis is rated as limited motion period not and and not as limited motion in the sense that there can be different forms of limited motion and our in that view five zero zero three is a

[00:07:33] Speaker 00:
is, in the government's view, picks up a situation where there is limited motion, but no rating has been given for that joint for limited motion.

[00:07:46] Speaker 00:
And you want to say the different forms of limited motion need to be thought of separately?

[00:07:51] Speaker 02:
Yes, Your Honor.

[00:07:52] Speaker 02:
And the reason for that, as we extensively talked about in our brief, number one, going back to Saunders 1110,

[00:08:00] Speaker 02:
The basis of compensation is the disability, and the disability is the impairment in function.

[00:08:06] Speaker 02:
So when we look at particularly the spine, the shoulder, we highlighted shoulder because there is a precedent decision on that, and the knee, the shoulder, the spine has a single rating for all limited motion.

[00:08:20] Speaker 02:
The knee, however, recognizes that there are two separate impairments involved with the knee.

[00:08:24] Speaker 00:
And so the limited extension is different than... Against the two different diagnostic codes.

[00:08:30] Speaker 02:
Correct, Your Honor.

[00:08:31] Speaker 02:
And so in conjunction with 4.25B,

[00:08:35] Speaker 02:
which, again, specifically highlights arthritis as a disease that causes additional impairments that must be separately rated.

[00:08:44] Speaker 02:
We look at 1110 and Saunders and how they have interpreted the term disability.

[00:08:49] Speaker 02:
It's clear that when the – when 5003 talks about rating limited motion on the basis of limited motion under the appropriate diagnostic codes for the joint, it is referring to

[00:09:04] Speaker 02:
that joint and looking then at how does VA describe the different kinds of impairments that are possible or present in the joint.

[00:09:15] Speaker 02:
And so when, for instance, again, going back to the shoulder, any limited motion is a 20 percent minimum, 30 and so on.

[00:09:23] Speaker 02:
But with the knee and the hip, the elbow, there are multiple different forms of limited motion that each

[00:09:29] Speaker 02:
Limit functioning in a different way that the VA has recognized causes a different amount of impairment and if just as a Practical matter.

[00:09:39] Speaker 00:
I know this kind of thing is second nature to you, but not to me.

[00:09:42] Speaker 00:
What's the benefit that?

[00:09:45] Speaker 00:
Mr. Regis would get if you were to get this second 10% rating and

[00:09:50] Speaker 02:
So the benefit to Mr. Regis is that under 4.25A, all of the ratings are combined under their table.

[00:09:59] Speaker 02:
So whereas a single rating would be 10%, two 10% ratings would combine to, under the chart, 19%, which would round up to a 20.

[00:10:08] Speaker 02:
So if this were his only disability, his only impairments, then rather than a 10%, he would have a 20% disability rating.

[00:10:17] Speaker 02:
And in other situations you have some other disability ratings already.

[00:10:22] Speaker 02:
He does your honor.

[00:10:22] Speaker 02:
Yes He has some additional and in fact the board decision granted some additional ratings for this knee based on other impairments again But there's still room for more there is your honor because as we combine these Particularly when the bilateral factor comes into effect under four point two six you you combine the the two extremities first add ten percent and treat it as a single disability and

[00:10:46] Speaker 02:
Which, when we're looking at the bilateral factor in particular, it can have a pretty substantial impact on the overall ratings.

[00:10:55] Speaker 00:
And again, this is language that I would like a little clarification of.

[00:11:01] Speaker 00:
In 5.003, where it does apply, it says it's to be combined, not added.

[00:11:09] Speaker 00:
Explain that to me.

[00:11:10] Speaker 02:
And that's what I was just describing, Your Honor.

[00:11:14] Speaker 02:
4.25A talks about combining B, talks about separately rating all disability that result from a disease.

[00:11:24] Speaker 02:
The same language is used here in saying that, so when there is a joint is affected by limited motion, you combine those

[00:11:34] Speaker 00:
Ratings and I'm asking a perhaps even more elementary question.

[00:11:38] Speaker 00:
What's the difference between combining and adding?

[00:11:40] Speaker 00:
So adding is just straight-up math 10 plus 10 is 20 Combining is you get to 19 correct?

[00:11:48] Speaker 02:
It refers back to the table.

[00:11:50] Speaker 02:
Okay in the math is very Confusing I don't pretend to understand it, but the chart is very clear on how you have to 10% or How are treated?

[00:12:03] Speaker 02:
So again, this language here reinforces by referring back to the combined ratings table, by referring to in 4.25B, referring back to arthritis as combining separate or rating separate disabilities from the same disease requires that each disability is subject to the 10% minimum.

[00:12:28] Speaker 00:
OK.

[00:12:29] Speaker 00:
Thank you.

[00:12:29] Speaker 02:
Thank you, Your Honor.

[00:12:47] Speaker 00:
That's how I know who you are.

[00:12:51] Speaker 02:
The Veterans Court's decision should be affirmed for two reasons.

[00:12:56] Speaker 02:
First, Mr. Regis did not raise this argument before the Veterans Court, this argument about Diagnostic Code 5003.

[00:13:01] Speaker 02:
He's therefore waived it.

[00:13:04] Speaker 02:
And the Veterans Court didn't make any decisions about the application of Diagnostic Code 5003, nor for that matter did the board.

[00:13:10] Speaker 00:
So I have a procedural question.

[00:13:13] Speaker 00:
I don't know if that's the right label.

[00:13:15] Speaker 00:
Suppose we were to agree with you that the argument was, I think we now say, forfeited, but anyway, not presented to the Veterans Court.

[00:13:25] Speaker 00:
That's a non-jurisdictional defect.

[00:13:28] Speaker 00:
Would we dismiss or affirm?

[00:13:30] Speaker 00:
And on what authority would we make that choice?

[00:13:34] Speaker 02:
So I would typically argue that the court should affirm if there's a non-jurisdictional defect that the court identifies.

[00:13:43] Speaker 00:
Right.

[00:13:43] Speaker 00:
And we've said a number of times that failure to present an argument to the Veterans Court is a non-jurisdictional defect.

[00:13:51] Speaker 02:
Right.

[00:13:52] Speaker 02:
So that would be an affirmance.

[00:13:54] Speaker 02:
And that's how we frame the argument in the brief.

[00:13:58] Speaker 02:
doesn't think it has any jurisdiction at all, then the appropriate disposition, of course, is to dismiss.

[00:14:03] Speaker 02:
But we frame this as an affirmance.

[00:14:05] Speaker 00:
But the other side makes an argument that 5003, properly interpreted, has a certain meaning that would allow for this second 10% rating.

[00:14:21] Speaker 00:
That's a legal assertion.

[00:14:22] Speaker 00:
um... it probably if correct would change the result of the veterans court and veterans court decision so it would be implicitly decided even though not presented which i think is uh... aligned between the jurisdiction question and the preservation non-jurisdiction question i agree with that as a general matter the one thing i would say here is

[00:14:46] Speaker 02:
To reach that issue, the court would also have to make certain factual findings.

[00:14:52] Speaker 02:
There are certain factual predicates to the application of 5003 that, because this issue was never addressed by the board, haven't been made clear.

[00:15:00] Speaker 03:
What are those factual predicates?

[00:15:03] Speaker 02:
There has to be degenerative arthritis.

[00:15:06] Speaker 02:
It has to be established by x-ray findings.

[00:15:09] Speaker 02:
And there has to be the limitation of motion or pain under certain circumstances.

[00:15:14] Speaker 02:
What about not post-traumatic?

[00:15:16] Speaker 02:
You're right, Your Honor.

[00:15:17] Speaker 02:
They do say that, that not post-traumatic.

[00:15:20] Speaker 02:
So Judge Sol, you're right to call attention to that issue as well.

[00:15:24] Speaker 00:
But is that characterization settled in this case?

[00:15:27] Speaker 00:
Or is there still uncertainty about that?

[00:15:31] Speaker 02:
And normally, there'd be a board finding to resolve that.

[00:15:34] Speaker 02:
So to me, it's unsettled still.

[00:15:36] Speaker 02:
And I'm not aware one way or the other.

[00:15:38] Speaker 03:
I thought that maybe there was a finding that he did not, that he had post-traumatic arthritis at JA 29.

[00:15:47] Speaker 03:
But I could be misunderstanding.

[00:15:50] Speaker 02:
Yeah, we talked about that.

[00:15:56] Speaker 02:
So this looks like the regional office decision.

[00:16:00] Speaker 02:
So I'm not sure what Mr. Regis' view is on that.

[00:16:05] Speaker 02:
I don't think he appealed that to the board.

[00:16:07] Speaker 02:
I don't think there's a board.

[00:16:09] Speaker 02:
I don't think the board's addressed that.

[00:16:11] Speaker 02:
But all of this really emphasizes just reasons why the court shouldn't address this issue in the first instance, because there are all sorts of complexities that are supposed to be worked out in the administrative process that just haven't been worked out yet here.

[00:16:23] Speaker 02:
I also want to emphasize that if the court agrees with us,

[00:16:28] Speaker 02:
It's not going to forever bar Mr. Regis from filing a claim.

[00:16:33] Speaker 02:
He could file it today, with my understanding, based on Diagnostic Code 5003.

[00:16:36] Speaker 02:
He could go through the process of getting a poor... Could he make it an acute claim?

[00:16:42] Speaker 00:
I mean, you could try, but I mean, if 5003 has not been interpreted, as I understand it, in this particular issue about counting different forms of knee motion problems, right?

[00:16:59] Speaker 00:
So it wouldn't be like a George situation where you have a clear position which gets changed by a later clear ruling saying the earlier position was wrong.

[00:17:11] Speaker 02:
So I think the question I would have is whether how forfeiture and waiver interact with the Q standard.

[00:17:20] Speaker 02:
So we might argue that if you don't raise an argument before the Veterans Court, then to come back on clearing on a mistake.

[00:17:26] Speaker 02:
It's not clearing on a mistake.

[00:17:28] Speaker 02:
Mistake will err for the Veterans Court to decline to consider an argument you didn't raise.

[00:17:31] Speaker 02:
They're allowed to do that.

[00:17:32] Speaker 02:
So wait, but key doesn't apply to the better sort of wise either to the board or to the RO But not to the veterans work if you don't preserve if you don't If you don't exhaust we're getting way ahead of ourselves if you don't exhaust your administrative revenues is the point but So I'm not I don't have an answer yes or no, but I would have some skepticism about it So that's that's that's the issue on the

[00:18:00] Speaker 02:
presentation to the Veterans Court.

[00:18:02] Speaker 02:
I'll just briefly address the merits as well.

[00:18:05] Speaker 02:
So I think Judge Toronto, you've accurately described our position on the merits.

[00:18:10] Speaker 02:
There are a couple reasons I would provide in support of it.

[00:18:13] Speaker 02:
One is that Diagnostic Code 5003 is clearly focused on this question of

[00:18:19] Speaker 02:
of double compensation, the anti-pyramiding rule under section 4.14.

[00:18:24] Speaker 02:
We understand it to implicitly reflect that prohibition in the regulation.

[00:18:30] Speaker 02:
So that's one basis for our reading.

[00:18:35] Speaker 02:
A second is some of the language arguments we make in our brief, such as the reference to the plural diagnostic codes, so the non-compensability inquiry is directed to all diagnostic codes.

[00:18:49] Speaker 02:
And we acknowledge that separately, 5260 and 5261 do contemplate separate ratings based on separate motions.

[00:18:57] Speaker 02:
The distinction, though, that I would draw is 5003 has a different type of inquiry, a more generic, general condition of arthritis, rather than the specific limitations contemplated in 5260 and 5261, which raises more concerns that you could be double-compensating based on any limitation of motion that's a manifestation of arthritis

[00:19:21] Speaker 02:
If you have such a limitation or such a manifestation, then compensating the arthritis in addition to compensating the manifestation of the arthritis is where you run into section 4.14 problems.

[00:19:31] Speaker 00:
Do you disagree with the idea, which I think the other side was raising, that arthritis in the knee can cause either two different kinds of movement problems.

[00:19:46] Speaker 00:
And actually, different disabilities might flow from those different limitations on motion.

[00:19:53] Speaker 00:
I think you can infer from the fact that the VA separately weighted them and allows compensation under both to... There's some things that you can't... that you're seriously impaired in doing if you can't truly straighten your leg and other things that you are impaired in doing if you, you know, you can't bend it enough to squat down, for example.

[00:20:14] Speaker 02:
The fact that they're two separate ratings, and you can get both, I think, supports that view.

[00:20:20] Speaker 02:
We're distinguishing between that point, that factual point, which we would agree with, and the nature of what the diagnostic codes are compensating in the sense that arthritis is defined based on limitation of motion.

[00:20:35] Speaker 02:
If you're already compensating a limitation of motion, you're effectively compensating arthritis.

[00:20:40] Speaker 02:
That's what we understand the concern to be addressed by Diagnostic Code 5003.

[00:20:45] Speaker 01:
I'm interested in your point about Minister Regis being able to bring a 5003 claim.

[00:20:53] Speaker 01:
If we were to decide the case on the facts before us, let's say we just disagreed with you that the issue is not sufficiently raised and we don't have a sufficient factual basis, we could be in a situation where we're deciding it and precluding him from bringing a subsequent 5003 claim.

[00:21:09] Speaker 01:
Is that correct?

[00:21:11] Speaker 02:
So, well, if you

[00:21:14] Speaker 02:
If you reject his argument, then yes, I think he is going to have some conclusion issues.

[00:21:23] Speaker 02:
So what you're suggesting, Judge Garcia, is that not deciding the case might leave open doors for him that could otherwise be closed.

[00:21:32] Speaker 02:
I would agree that that's the case.

[00:21:35] Speaker 01:
And if you were, I mean, what's the clearest way or the clearest decision from this court that would have the least preclusive effect?

[00:21:48] Speaker 02:
I think if the court says this issue has not been presented to the board and hasn't been presented to the Veterans Court, therefore, we're not going to consider it in the first instance.

[00:22:00] Speaker 02:
And you could say what I said, which is that he can bring claim based on this theory today if he wants to.

[00:22:08] Speaker 02:
I think that the signal would be very clear that the door is open.

[00:22:12] Speaker 01:
And the appellant cites that it's at the Precipe case that essentially says that this court's got whole case jurisdiction and I guess, I'm sorry, Precipe case.

[00:22:28] Speaker 01:
And that sort of encourages the court to be a little bit aggressive with respect to deciding issues that may be underdeveloped.

[00:22:36] Speaker 01:
The downside of that, though, is that it precludes

[00:22:42] Speaker 01:
the person filing the claim from getting a fair hearing and a fully developed claim?

[00:22:49] Speaker 02:
I agree with that.

[00:22:49] Speaker 02:
There are benefits to the VA administrative process for veterans.

[00:22:54] Speaker 02:
The board, they have duties to look at issues reasonably raised by the record.

[00:22:58] Speaker 02:
So it can take time to go through the process, but there are real benefits and there are reasons that Congress set it up.

[00:23:07] Speaker 02:
So I take your point, and I agree with it.

[00:23:12] Speaker 02:
If there are no further questions, we respectfully request the quarter firm.

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

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

[00:23:33] Speaker 02:
So I do want to first correct a statement that I said with respect to the diagnostic code.

[00:23:39] Speaker 02:
Looking on page 20 of the appendix, this is a rating code sheet.

[00:23:43] Speaker 02:
This was prepared, although early, in 2009 after his initial injury.

[00:23:49] Speaker 02:
You can see that the right knee has patellar tendonitis.

[00:23:53] Speaker 02:
And when looking at one of the other diagnostic codes, I believe it's 5024.

[00:24:02] Speaker 02:
says, and then just below that, there's a note.

[00:24:05] Speaker 02:
This is in 4.71A.

[00:24:07] Speaker 02:
It says, evaluate diseases under diagnostic codes 5013 through 24 as degenerative arthritis based on limitation of motion.

[00:24:18] Speaker 02:
highlighted in our briefing that he does have arthritis.

[00:24:21] Speaker 02:
But to your point, Judge Sturr, even if he doesn't have the specific degenerative arthritis, that diagnostic code, which does apply to him and has already been a fact determined by the agency, requires the VA to have rated under 5003.

[00:24:37] Speaker 03:
So it kind of gives me- For your purposes, there is something that suggests that it's post-traumatic.

[00:24:43] Speaker 03:
On page A27 and A29, I'm just telling you this for future reference.

[00:24:48] Speaker 03:
Should you bring a new claim?

[00:24:50] Speaker 01:
Yes, ma'am.

[00:24:52] Speaker 01:
OK.

[00:24:52] Speaker 01:
Can I just ask, why haven't you raised 5003 before?

[00:24:58] Speaker 01:
Why wasn't it raised at the veterans' court?

[00:25:00] Speaker 02:
I don't know, Your Honor.

[00:25:02] Speaker 02:
I got involved at this stage and after the Veterans Court has already dealt with it.

[00:25:07] Speaker 02:
In speaking with the attorney, I understood that this was, that he was aware and understand what this regulation meant.

[00:25:15] Speaker 02:
And that was kind of our initial discussion in looking at the Veterans Court's decision.

[00:25:20] Speaker 02:
I can't speak for why the veteran or the

[00:25:23] Speaker 01:
Either agency or the court didn't raise it, but what I can say again is that just quickly Do you disagree with counsel that you could raise a five zero zero three clean tomorrow?

[00:25:33] Speaker 02:
We can your honor except I will just have two responses to that number one is

[00:25:38] Speaker 02:
We need to know today what the law says.

[00:25:41] Speaker 02:
The VA right now is misinterpreting it, at least according to how we read it, in requiring additional function disability in order to meet the criteria for a rating under 5003.

[00:25:54] Speaker 02:
That is not what the plain language of the regulation requires.

[00:25:58] Speaker 02:
And so even if he were to file another claim, he would still get the same result.

[00:26:03] Speaker 02:
But regardless, even if this court were to

[00:26:06] Speaker 02:
rule against Mr. Regis.

[00:26:08] Speaker 02:
We're perfectly happy with that.

[00:26:10] Speaker 02:
We want this law settled.

[00:26:11] Speaker 02:
This is why we bring these regulatory interpretation cases, because right now there's a lot of uncertainty in how this regulation is supposed to be applied.

[00:26:21] Speaker 02:
The availability of a higher rating is still available should he, if the court were to find in favor of the government, have the higher

[00:26:29] Speaker 02:
limitation of functioning in whatever movement of the knee or other joint.

[00:26:35] Speaker 02:
But we think, again, that the plain language, particularly when looking at 4.25b, 1110 Saunders, is that it's the impairments.

[00:26:42] Speaker 02:
It's the functional impairment, the disability that is being compensated.

[00:26:46] Speaker 02:
It's not the disease.

[00:26:48] Speaker 02:
And that's really where the government's interpretation falls apart, is it requires that the – You're repeating yourself.

[00:26:56] Speaker 00:
I understand, Your Honor.

[00:26:57] Speaker 02:
I was trying to sum up.

[00:26:59] Speaker 02:
wait that's all we have thank you for your time and look forward to your decision thanks to both counsel cases submitted