[00:00:00] Speaker 03:
224-2238, DeHart v. Collins, Mr. Stoltz.

[00:00:06] Speaker 02:
Good morning, Your Honor, and may it please the Court. The 2009 Notice of Disagreement put the question of the proper rating for Ms. DeHart's back condition to include lumbar radiculopathy into appellate stats.

[00:00:22] Speaker 02:
The Veterans Court erred when it found that radiculopathy was not an appellate status at the time of the Board's 2021 decision.

[00:00:31] Speaker 02:
Under this court's decisions in being, in Grantham, the 2009 NOD put the proper rating for lumbar radiculopathy into appellate status, and subsequent AOJ decision that does not provide a full grant of benefits cannot resolve the pending claims.

[00:00:49] Speaker 04:
Is it fair to say that the key question here, put in less formal terms, is whether radiculopathy... is a symptom of spondylolisthesis or is rather a secondary condition? That is an important question in this case. And if that question, if this case turns on that question, Why is that not a factual issue that is not within our jurisdiction?

[00:01:27] Speaker 02:
Because this is a straight question of regulatory interpretation and a jurisdictional question.

[00:01:36] Speaker 02:
And those are squarely before this Court of Legal Questions.

[00:01:39] Speaker 04:
But what part of the regulation is it that we would be interpreting to make a determination as to whether it's a symptom issue?

[00:01:48] Speaker 02:
The plain language of 4.25, 4.71A, and then in the alternative 3.155. Those regulations are key to this issue.

[00:02:01] Speaker 04:
I agree that they're key, but I don't see that those regulations or any interpretation of those regulations tell us which this is. That's my problem.

[00:02:15] Speaker 02:
And that gets to the nub of where the Veterans Court committed its legal error. It divested the board in itself, really. They made it into a jurisdictional question because they went under a completely different kind of rubric or they went away from how this should be adjudicated. And so I'd also submit to Your Honor that the legal question here is ensuring that the Veterans Court adheres to its own precedent in Chavis and Bailey.

[00:02:39] Speaker 00:
To get to that legal question, don't you have to first deal with the factual issue that Judge Bryson is bringing up?

[00:02:45] Speaker 02:
But the facts are not in dispute other than the legal... The facts are not in dispute in this case other than the legal framework that should be used. There's really no factual dispute here.

[00:02:59] Speaker 03:
What's the legal framework? Are we back to the regulation?

[00:03:03] Speaker 02:
Yes, 4.25, 4.7. How does that...

[00:03:06] Speaker 03:
What is the language there that you're saying that the Veterans Court misinterpreted, the language of those regulations?

[00:03:13] Speaker 02:
Well, it misinterpreted where the Veterans Court committed its legal error is in saying that the Board of Veterans Appeals had no jurisdiction to consider this because it called it a secondary condition, whereas the plain language of the regulation calls this a complication or, to your honor's point, symptoms.

[00:03:30] Speaker 04:
Well, where in the regulation...

[00:03:34] Speaker 04:
is there something we can look at and say, aha, this is a symptom, it's not a secondary condition?

[00:03:41] Speaker 02:
I would say 4.7... Secondary, yeah, secondary. I would say 4.71A, note 1, and 4.25 were saying that separate ratings are appropriate for distinct manifestations. I'm looking at 4.25 now, Your Honor.

[00:03:55] Speaker 02:
Saying that separate ratings are appropriate for distinct manifestations of a single disease entity.

[00:04:02] Speaker 02:
And that is where... Somehow.

[00:04:05] Speaker 04:
Basically saying a symptom, a manifestation is a symptom. Correct, Your Honor. So there's no doubt that that's true, but that doesn't define what a secondary condition versus a symptom is.

[00:04:18] Speaker 02:
But if that's true, Your Honor, then we are squarely into a legal question. Because if we take that as true... and the Veterans Court said that the board now does not have jurisdiction over this and that the claim stream basically remains open to 2008, now we are into the legal framework. And so, yes, that regulation applies, and I take it that Your Honor is with me on that, saying that clearly we've got a symptom. So then that is the legal error here.

[00:04:47] Speaker 04:
No, no, no. Wait, wait, wait.

[00:04:49] Speaker 02:
You say...

[00:04:51] Speaker 04:
I don't think I'm agreeing that it is a symptom. Okay, I'm sorry, Your Honor. Yeah, I'm saying I don't see where the regulation tells us whether it's a symptom or a secondary condition.

[00:05:04] Speaker 02:
Well, I would point, Your Honor, to continuing on from 4.25 to 4.71a, the note, and then the regulatory history, saying that bat conditions, essentially paraphrasing from the regulatory history, which we discussed in our opening brief, basically that bat conditions have a number of manifestations.

[00:05:22] Speaker 04:
And so the idea is... Going back to note one. What in Note 1 tells us the answer to the question that I've posed? Note 1 says, evaluate... I believe I'm in the right note on the spine, 4.71A, Note 1. Is that where you are? Yes, Your Honor. All right. It says, evaluate any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, separately under an appropriate diagnostic code.

[00:05:53] Speaker 04:
So separate evaluation...

[00:05:57] Speaker 02:
And read in conjunction with 4.25 as well as the regulatory history, the radiculopathy is one of the complications that is commonly rated together with the spondylolisthesis and low back conditions. And how do I know that? Because of the way that this case developed, and we know that spondylolisthesis is part of the low back condition.

[00:06:24] Speaker 02:
And so I'm trying to explain a little bit that that's how it should be rated, not as a secondary condition. And the way that VA considered this, even in 2019, Your Honor, illustrates that it understood to do that.

[00:06:41] Speaker 04:
That's a legal question that is within our jurisdiction, not a factual determination made by the Veterans Court.

[00:06:51] Speaker 02:
But because the board is saying that it does not have jurisdiction and then the court upheld that there was no jurisdiction over this because they parsed it out as a secondary condition as opposed to all part of one claim, right? One claim for compensation. Because they did that, that's a legal error. This is a claim for compensation. It's not an effective claim and that's the legal question.

[00:07:16] Speaker 04:
If you were to agree that this...

[00:07:20] Speaker 04:
was that this condition was a secondary condition, not a symptom, would you still think that there's a legal error here?

[00:07:34] Speaker 02:
It would be a harder question.

[00:07:36] Speaker 04:
What would be the argument for why there would be a legal question?

[00:07:40] Speaker 02:
If this were something separate, like the case in Manzanares, which the government relies on in their brief, where it was a back condition and then there was a secondary, there was an ankle condition claimed as secondary. If it were something that were out of what is rated as radiculopathy, which is related to the low back condition, I think it would fall more under Manzanares than it did under Grantham and Bean. And so I do think it would be a harder question. Your Honor, and it would get in more to factual findings. But that's not what happened here.

[00:08:11] Speaker 02:
We've got no question. We really don't have any question facts other than where the Veterans Court went awry by parsing this out as a secondary condition and then kind of moving under that framework, under kind of the Manzaneri's Ellington, that kind of framework, as opposed to staying where it belonged, considering that this is a lumbar radiculopathy, right leg lumbar radiculopathy related to the low back, manifested therefrom, and it should have been under that legal framework.

[00:08:41] Speaker 02:
And the fact that it was not is the legal error in this case. And then moving along to the fact that it basically said that, well, it said that there was no jurisdiction for the board to consider this, and that's the legal question here.

[00:08:53] Speaker 03:
You also mentioned in passing that one of your issues, one of your legal questions, was something about the Veterans Court issuing inconsistent opinions.

[00:09:03] Speaker 02:
It's an argument in our opening brief and, again, in reply, is that Chavis, Chavis, and Bailey are Veterans Court's decisions that are on point here. There's really no difference between this case and Chavis.

[00:09:14] Speaker 03:
Even assuming you were right in the CABC's discussion of those cases is incorrect.

[00:09:20] Speaker 03:
Is that the kind of legal issue that we would have authority to decide? I can't recall in 23 years of ever deciding a legal question.

[00:09:29] Speaker 02:
We rely on the Cree case for this court mentioning that the Veterans Court should adhere to its settled principles.

[00:09:43] Speaker 03:
It turned out that were the centerpiece of your argument for why we have jurisdiction, really?

[00:09:48] Speaker 02:
It is not the centerpiece of my argument, Your Honor.

[00:09:50] Speaker 03:
And then you keep on talking about – when we talk about legal questions or legal issues, you said a couple times the legal framework.

[00:09:58] Speaker 03:
Is that what you're calling the legal issue is the framework?

[00:10:04] Speaker 02:
The legal – yes, the legal framework is a legal question before this court but also the jurisdiction question of whether the board has jurisdiction to consider – from the AOJ's decision in this case back to 2008 to consider this whole claim stream open for ridiculopathy. And the board declined.

[00:10:25] Speaker 03:
Don't you think in a typical veterans case, I don't like using the word jurisdiction because I don't like using the word jurisdiction, but in a typical veterans case, what the board has authority to review is predicated on what the NOD says? Yes.

[00:10:43] Speaker 02:
Yes.

[00:10:44] Speaker 03:
Okay, so the issue here would be whether the NOD covered that.

[00:10:49] Speaker 02:
The NOD covered that situation, yes, because the NOD, going back to 2009, was a broad NOD saying she wanted a higher rating for the back.

[00:10:58] Speaker 03:
That continued on until... So you think saying in an NOD, I want a higher rating for the back, she got a 0% right for the back.

[00:11:06] Speaker 02:
Right.

[00:11:07] Speaker 03:
That includes all subsequent... manifestations of whether we're calling them secondary effects or... Well, in this case, it doesn't... I'm sorry.

[00:11:20] Speaker 02:
In this case, there was evidence of the radiculopathy at the time, so there was really no subsequent... It's not a subsequent situation, although to answer your Honor's question, yes, an NOD could encompass subsequent manifestations as long as it remains on appeal and the back condition is on appeal.

[00:11:36] Speaker 03:
And it's on appeal because the NOD...

[00:11:40] Speaker 03:
didn't refer to this condition specifically, right?

[00:11:44] Speaker 02:
The NOD was for the back, and this is under 4.71 and 4.25, part of the back condition that needs to be rated.

[00:11:51] Speaker 04:
That is the key question, though, is whether it is part of the back condition or whether it's a secondary condition. If it's the latter, then the NOD... I take it under fairly well-settled law, would not be sufficient to raise this. Is that correct?

[00:12:10] Speaker 02:
If it is a secondary condition and not a complication, yes, Your Honor.

[00:12:14] Speaker 04:
All right. So we get back to that question. And that question, if factual, is outside of our jurisdiction. If it's factual.

[00:12:24] Speaker 02:
If it is factual.

[00:12:25] Speaker 02:
if that is a factual inquiry, but given the tenor of this case, that is not the factual inquiry here because there are so many legal questions as to, not to use the word, but as to, not to use the word jurisdiction, I'm going to stay away from that, but that there is this claim, the compensation question has not been fully answered because of legal error of the Veterans Court.

[00:12:52] Speaker 03:
Can I just ask kind of a factual related question? question.

[00:12:57] Speaker 03:
Her exam, which demonstrated the 20%, she got it in 2019? That is correct. Assuming we could get into this stuff, how would we even know whether that 20% rating should go back to 2008 or 2009? How does one ascertain that in hindsight? Because of the notice of disagreement.

[00:13:22] Speaker 03:
Did the notice of disagreement explicitly ask and submit medical evidence that she was entitled to a 20% rating?

[00:13:28] Speaker 02:
It did not. The notice of disagreement was broad. It said she wanted more for the back. And because of the regulations, 4.71, 4.25, all the regulations that we cited in here, the lumbar radiculopathy should be rated as a complication from a lumbar spine condition. So lumbar radiculopathy, lumbar spine conditions. And so that is the important.

[00:13:50] Speaker 03:
But how did we even know since there was no medical analysis or specificity in terms of what you were seeking as a claim? Even if you were right on everything else, how do you go back 10 years in the record and give your 20% rate? Why would we not, even if you were right in terms of this being included in our analysis here, It could have been 0%. It could have been 5%.

[00:14:12] Speaker 02:
You would look, Your Honor, at the record. This is a legacy case, and so it happens all the time that there's a claim stream open back in time, and You look at the evidence of record. There was, in this particular case, there was evidence of this radiculopathy. You can also get retroactive examinations. You can ask this question. The duty to assist, this is not an AMA case. This is a legacy case. The duty to assist is still attaching here. And VA can go and develop evidence. You can go back in time. You can look at the lay evidence. You don't have to have a doctor's opinion just in 2019 saying this.

[00:14:42] Speaker 02:
There's still development to be had, and there is still record that they have not even looked at.

[00:14:49] Speaker 00:
Before you sit down here, quick question. When does a determination assume adjudicative identity?

[00:14:57] Speaker 00:
The decision of the VA has a separate, distinct finding or decision with respect to the lower extremity, the right leg. Isn't that enough for this particular part of the claim to assume its adjudicative identity?

[00:15:18] Speaker 02:
By adjudicative identity, do you mean that they severed it off kind of as its own rating and as its own inquiry, and so that's a new adjudicative inquiry?

[00:15:30] Speaker 00:
It has a right to appeal to the appellate process at that point.

[00:15:33] Speaker 02:
Yes, there is a right to appeal it, but it's not necessary to appeal it as different when under the regulatory framework it is part of the back condition, and so it's still a claim for compensation.

[00:15:44] Speaker 00:
I see this as the legal question involved here.

[00:15:46] Speaker 02:
That is a legal question as well. It has to do with how the adjudicative tenor or the adjudicative question in this case, how they should have adjudicated this condition. So I do agree with Your Honor.

[00:16:01] Speaker 03:
Well, isn't one of the arguable answers to that that what determines what's to be adjudicated in step two is based on what the NOD raises as the issues, right? Isn't that the way the system works?

[00:16:15] Speaker 00:
Yes.

[00:16:16] Speaker 03:
Okay.

[00:16:17] Speaker 00:
Yes, Your Honor. Well, it seems that once you assume the judicative identity, then a nod was definitely required.

[00:16:25] Speaker 02:
And it was filed in 2009.

[00:16:29] Speaker 04:
And the question is what the scope of the nod covers.

[00:16:35] Speaker 02:
That is one of the questions.

[00:16:36] Speaker 04:
That's really the central question in the case, right?

[00:16:39] Speaker 02:
I'm sorry?

[00:16:39] Speaker 04:
It's the central question in the case.

[00:16:41] Speaker 02:
Yes, Your Honor.

[00:16:42] Speaker 03:
Why don't we give them a go?

[00:17:00] Speaker 01:
May I please record? Good morning.

[00:17:03] Speaker 01:
The Veterans Court's decision should be affirmed. The VA concluded in 2019 that Ms. DeHart's radiculopathy was secondary to her spinal condition, which is the phrase I'm going to use. I'm not quite as brave as Judge Bryson to try to pronounce it.

[00:17:20] Speaker 01:
That's a factual determination that the court can't review, and when looked at under that framework, everything else falls into place because Ms. DeHart's 2008 notice of disagreement clearly was limited in scope to her spinal condition. It couldn't address a radiculopathy rating that hadn't been made, and it certainly couldn't address an effective date of a radiculopathy rating that hadn't been issued yet.

[00:17:51] Speaker 01:
So from that perspective, the NOD is too narrow to cover the effective date of her radiculopathy rating, which she's trying to challenge in this appeal before this court.

[00:18:03] Speaker 03:
Go ahead. How do the regulations that we've discussed with your friend play into your analysis?

[00:18:09] Speaker 01:
So what the regulations say, and we address this at page 22 of our brief...

[00:18:19] Speaker 01:
The regulations effectively say that the VA should rate separate disabilities under separate diagnostic codes. So the regulations establish that if the VA determines that there are distinct disabilities for a back condition and radiculopathy, then it should rate those under the appropriate diagnostic codes. In this case, the regulations have different diagnostic codes for spinal condition and for the radiculopathy.

[00:18:46] Speaker 03:
And does that answer the question of seems to be, some of us think, the central question here about whether this was really a symptom, whether it was a secondary consideration.

[00:18:55] Speaker 01:
It does. The VA considered it to be a secondary condition that was consistent with the regulations that I've been quoting. But more to the point, that is a factual determination that has to be challenged at the Veterans Court rather than at this court.

[00:19:09] Speaker 03:
Do you understand what your friend's argument is with respect to the regulations?

[00:19:19] Speaker 01:
So I understand his argument to be that these – that radiculopathy is a complication or part of the back condition.

[00:19:29] Speaker 01:
But I just see that as being inconsistent with this court's precedent in Manzanares, which recognizes that there can be different – that a secondary claim is a different claim than a primary claim. It's inconsistent with the aspects of the regulations that we cite in our brief at page 22. So to the extent I understand it correctly, It just seems to be belied by the regulatory language.

[00:19:53] Speaker 04:
Go ahead.

[00:19:55] Speaker 01:
And the other point I want to mention, too, is there are benefits to claimants to look at different disabilities and categorize them under separate diagnostic codes. It's complicated math, obviously, but generally speaking, claimants will often want to have the different disabilities to be seen as different disabilities and thus separately compensable under different DCs.

[00:20:17] Speaker 04:
Do you see the regulations, and I'm trying to parse the point you made just a moment ago, do you see the regulations as establishing a basis for determining whether something is a secondary condition as opposed to a symptom?

[00:20:35] Speaker 04:
Or do you see the determination of whether something is a secondary condition or a symptom as being something that the regulations do not expressly address?

[00:20:46] Speaker 01:
The way I would put it is the regulations encourage the rating of separate disabilities separately. So the overarching question is, are there two separate disabilities?

[00:20:56] Speaker 04:
Exactly. Now, is there anything in the rating, in the regulations, that would tell us which this is? Is this a condition or a symptom?

[00:21:08] Speaker 01:
I don't think so. I think the answer is that there's this broad standard of functional impairment that attaches to a disability. And if VA sees these as being two different functional impairments, then that is much closer to a factual determination than it is a legal determination. So that's how I would see this. This would be a factual issue in our view because the VA is trying to decide, exercising judgment, about whether to look at these as two separate disabilities or one single disability.

[00:21:41] Speaker 03:
You've done more veteran's cases than I have. It strikes me, though, based on my history, that that's generally beneficial to the veteran to consider them a separate disability.

[00:21:54] Speaker 01:
I agree with that. I agree with that, Judge Gross.

[00:22:00] Speaker 00:
Once there is a separate disability, then if you're going to challenge that separate disability... You're required to file a not and you don't do, correct?

[00:22:14] Speaker 01:
That's right. That's right. So in this case, Ms. DeHart received the 2019 RO decision and received the notice of appeal rights with that decision. So that's injecting this new disability, this new radiculopathy rating into the case. At that point, she did have an opportunity to file a notice of disagreement, which she didn't do.

[00:22:36] Speaker 01:
The reason that this nevertheless returned to the board, I think what seems a little unusual here, is even though she didn't file an NOD, it still went to the board. The Veterans Court notes, and we note in our brief, that there's a regulation that says under 1938, under the legacy system, to the extent that the claimant doesn't get everything she's asking for, the claim still goes back to the board for the board to look at this issue again to assess what the RO did, essentially, under the remand.

[00:23:05] Speaker 01:
But the board's jurisdiction is still going to be defined by the NOD So when that happened in 2021, the board is still looking at Ms. DeHart's appeal in light of what she had asked it to do in the 2009 NOD.

[00:23:19] Speaker 03:
So in 2021, they give her a 20% rating and they say it's back to 2019 or something like that. And she filed no NOD on that.

[00:23:28] Speaker 01:
Right.

[00:23:29] Speaker 03:
If she had filed an NOD, not for an increased rating, but over the backdatedness of this, would the issue of the 2008 NOD be legitimately before us if she had done a second NOD. We've got two potential NODs. She filed neither, in your view.

[00:23:48] Speaker 01:
So in that case, the 2009 NOD is going to cover the back claim, while the 2021 NOD is going to cover this new... So there would have been no basis to file an NOD saying, okay, I'm okay with the 20% rating, but I want to backdate it to 2008.

[00:24:08] Speaker 03:
We'd be arguing... something different, but you'd still be up here arguing that she's not entitled to retroactivity back to 2008.

[00:24:15] Speaker 01:
So I think that's right, if I understand your question, yes.

[00:24:22] Speaker 04:
So what you're saying is that, as I understand it, the fact that she didn't file an NOD with her cytorediculopathy in 2019...

[00:24:33] Speaker 04:
has no effect, whether she had or not, she still wouldn't have been able to get retroactive benefits to 2009.

[00:24:42] Speaker 01:
I'm trying to think through how she could. So the NOD would have been in 2019. At that point, the effective date would be determined by the date of the claim and or the date that the symptoms were on, the onset of the symptoms.

[00:25:01] Speaker 03:
The onset of the secondary condition.

[00:25:04] Speaker 01:
Yes, that's right. The onset of the secondary condition.

[00:25:08] Speaker 01:
I'm not aware of any basis to send it all the way back to 2009. I just can't think of any basis to go back that far.

[00:25:22] Speaker 03:
But that issue isn't before us.

[00:25:24] Speaker 01:
That issue isn't before us. That issue isn't before us.

[00:25:28] Speaker 00:
So when does a determination by the VA, just as a matter of law, assume an adjudicative identity?

[00:25:36] Speaker 01:
So I'm going to try to answer it in the context of this case. In 2019, you have an RO decision. Mr. Hart can appeal that.

[00:25:47] Speaker 01:
But at the point, if she appeals it, then it goes up to the board. If she doesn't appeal it, then it becomes final. So clearly an RO decision that's not appealed does become final. So I would say the RO decision does have an adjudicative identity when it's issued, but it's subject to appeal, which can displace that identity.

[00:26:17] Speaker 03:
And the appeal defines the scope of what she said.

[00:26:20] Speaker 01:
And the NOD defines the scope. That's right.

[00:26:26] Speaker 01:
So no further questions for the firm. Thank you.

[00:26:56] Speaker 02:
Mr. Hart filed a notice of disagreement with compensation for her back condition. That put that question of compensation into appellate status where it stayed.

[00:27:07] Speaker 02:
To circle back to the conversation Judge Bryson, you and I were having about 4.25 and 4.71, I was remiss not to mention 3.155D2.

[00:27:16] Speaker 02:
which discusses whether they're, in this case, which falls really more closely under the Veterans Court's Bailey decision and under this court's Bean and Grantham decisions, because it's a complication. It's not part of the same, even if you take this not part of the same disease entity, it's a complication of the radiculopathy. And when she filed that broad notice of disagreement, seeking compensation, and to me, listening to my friend's argument, That really gets to the nub of the confusion that the Veterans Court seemed to have with this case, which really is quite simple if you take it that the notice of disagreement put the back condition as a whole into appellate status.

[00:28:02] Speaker 02:
It starts at whether she should have filed the notice of disagreement in 2019, what she should have specified in it. All of those are unnecessary questions in a case like this. This is a legacy case.

[00:28:14] Speaker 02:
And so this runs under legacy rules. She filed a notice of disagreement, which conferred jurisdiction to the Board of Veterans' Appeals. And the length of this case helps to demonstrate how important it is to get it right and to understand how this should be rated and when jurisdiction is conferred and by whom. Because it keeps going, and she doesn't have the strict pleading requirement to know exactly what it is. She knows that her back hurts. She knows that her right leg hurts. She said all that. It was in the evidence the entire time.

[00:28:46] Speaker 00:
What happens if five years later her ankle hurts, her right ankle hurts? You can argue that that was COVID as well.

[00:28:54] Speaker 02:
She could argue that. That is going to get a lot closer to the Manzaneri set of facts, where we're under 3.310.

[00:29:01] Speaker 02:
That's going to get a lot closer to that because it's not something that is a complication, unless it is, unless you can show that.

[00:29:06] Speaker 00:
Is that a factual decision?

[00:29:08] Speaker 02:
That will be a factual decision if there's something that comes out at that point. Although still I think it would be – I still think that it could be a factual situation.

[00:29:16] Speaker 00:
Aren't you requiring the VA to have a crystal ball of some kind that looks into all downstream – Symptoms are covered by the 2009 NOD?

[00:29:34] Speaker 02:
No. No, Your Honor.

[00:29:37] Speaker 02:
Even the cases that were cited, there's lots of discussion in the VA world about how to rate back conditions, lots of it. There's the language in 3.155. There's the 4.71 and 4.25 line of questioning. The Veterans Court got it right in Chavis and in Bailey. The Board of Veterans Appeals does this all the time. They look at back conditions. Constantly, it is not a real novel question that lumbar radiculopathy stems from and is a complication of a lumbar spine condition.

[00:30:09] Speaker 02:
It doesn't require a crystal ball at all, Your Honor.

[00:30:11] Speaker 04:
What in 3.155D2 specifically answers the question that you suggested?

[00:30:22] Speaker 02:
3.155D2.

[00:30:22] Speaker 04:
I've got it here, and I'm looking at it, and I'm not seeing anything that is a bell ringer for you.

[00:30:29] Speaker 02:
It's a complication.

[00:30:31] Speaker 02:
The word complications in D2, the scope of a claim, right? That's what it's entitled. 3.155 D2 is entitled scope of a claim. This is a claim for a low back condition. And the right leg radiculopathy requires an inquiry into entitlement of additional benefits for complications Of the claimed condition.

[00:30:58] Speaker 04:
Doesn't that bring us back to the question of whether this falls into the symptoms of a secondary condition? If this is a secondary condition...

[00:31:09] Speaker 04:
that would not be covered by 3.155D2, I take it.

[00:31:16] Speaker 02:
That goes to Judge Raina's question as well, I believe, Judge Bryson, if I'm understanding it correctly, that if it were something like an ankle or something that you would have to prove is secondary to, it would get back.

[00:31:26] Speaker 04:
But again, I keep coming up against the question of whether it is our job to make a determination as to whether this is a secondary issue. condition or a symptom slash complication?

[00:31:43] Speaker 02:
This court can and has investigated the scope of notices of disagreement and whether one notice of disagreement puts a condition into appellate status. And so that is an inquiry that this court is well versed in.

[00:32:01] Speaker 02:
Bean and Grantham, etc. And the rest of it is the proper adjudicatory tenor that the Board of Veterans Appeals and the Court of Appeals for Veterans claims should have used here.

[00:32:12] Speaker 03:
Okay.

[00:32:12] Speaker 02:
Thank you, Your Honors. Thank you.

[00:32:14] Speaker 03:
We thank both sides of the case.