[00:00:01] Speaker 00: The next case is 24-18-04, Mackey v. Collins. [00:00:06] Speaker 00: May it please the court. [00:00:15] Speaker 01: Adam Steinmetz on behalf of the claimant appellant, Mr. Terrence Mackey. [00:00:21] Speaker 01: Your Honors, the statutory language at issue here is a service-connected disability rated as total. [00:00:27] Speaker 01: It's in a special monthly compensation in 1114 S. Mr. Mackey has a rating of total disability based on individual unemployability. [00:00:36] Speaker 01: He is, in the eyes of the VA, a totally disabled veteran. [00:00:41] Speaker 01: He is exactly the type of veteran who should benefit from the special monthly compensation statute. [00:00:46] Speaker 01: But the board, the Veterans Court, and the secretary all say he has the wrong kind of TDIU. [00:00:52] Speaker 00: Well, and the statute, Congress says, [00:00:57] Speaker 00: 1114S that it's a service-connected disability rated as total. [00:01:03] Speaker 00: Correct. [00:01:04] Speaker 00: So why does this case not begin and end with the statutory text? [00:01:07] Speaker 01: The statutory language says a service-connected disability rated as total. [00:01:11] Speaker 01: It's A, and disability. [00:01:13] Speaker 01: That's correct, Your Honor. [00:01:14] Speaker 01: The TDIU context, however, is applied in only situations when a veteran does not have a service-connected disability rated as total. [00:01:25] Speaker 01: That's why the TDIU exists. [00:01:28] Speaker 01: So if a veteran had a total disability rating of 100%, the veteran would not need a TDIU at all, because he would already be compensated at the 1114J level. [00:01:38] Speaker 01: That's total. [00:01:39] Speaker 01: The fact is the Veterans Court has held and it's settled law, it's not up for an appeal. [00:01:43] Speaker 01: The Veterans Court has held that a TDIU can satisfy a service connected disability rated as total. [00:01:51] Speaker 01: It can be, it can stand in the face of one disability. [00:01:56] Speaker 04: That is totally disabling, not under the schedule, but under TDIU. [00:02:00] Speaker 04: So I think that that's the position that the secretary has taken. [00:02:03] Speaker 04: I mean, I understand your position and maybe Congress needs to change this, but 1114 is not just the part you read, but then it goes on. [00:02:14] Speaker 04: And it uses the words, because you have to have additional stuff for special monthly conversation. [00:02:19] Speaker 04: And it makes a specific distinction between additional service-connected disability or disabilities. [00:02:26] Speaker 04: So it recognizes that you can have multiple disabilities to add up to things. [00:02:32] Speaker 04: And so when it's using a service-connected disability in that first part, I would assume it's using it in the singular, just like it is in the second. [00:02:41] Speaker 01: part of that sentence. [00:02:42] Speaker 01: That's correct, Your Honor. [00:02:43] Speaker 01: And I think that's the decision that the Guerra Court came to as well. [00:02:47] Speaker 01: That was a panel majority decision from, I think, 2011. [00:02:50] Speaker 01: This is the case of Guerra that the Secretary relies on extensively. [00:02:53] Speaker 01: Now, we would argue as an alternative argument if Your Honors would not be willing to consider our argument that the TDIU itself stands in the place. [00:03:02] Speaker 01: The TDIU is not, let me answer that part first. [00:03:05] Speaker 04: Well, here's the problem for me is TDIU is not a disability. [00:03:08] Speaker 04: Correct. [00:03:09] Speaker 04: It's a rating. [00:03:10] Speaker 04: It's a rating based upon one or more disabilities. [00:03:14] Speaker 01: Well, let me just take issue with that because it is a rating based on a determination by the VA that the veteran is unemployable based on one or more disabilities. [00:03:27] Speaker 04: But the point that I'm making... But the disability picture is still one or multiple ones for TDIU. [00:03:33] Speaker 04: And if 1114S requires one disability rated as total, [00:03:40] Speaker 04: I mean, I'm a little curious as to why VA actually gives you this for a one disability rated as total for TDAU. [00:03:49] Speaker 04: I think they would be within their rights not to do it because there's no disability rated as total, but they've read this in a logical, pro-veteran way to say if you have one disability, [00:03:59] Speaker 04: that justifies a total rating, even if it scheduler does not, then you get this. [00:04:05] Speaker 04: But you want them to go further and say, well, it doesn't matter if it's one disability that gets you TDIU. [00:04:12] Speaker 04: It can be eight different disabilities that get you TDIU. [00:04:16] Speaker 01: Right. [00:04:16] Speaker 01: And the reason, Your Honor, is because exactly what Your Honor said is that they would have been fully in their rights to say that no TDIU is ever based on a single disability rated as total. [00:04:26] Speaker 01: A TDIU does not re-rate, for example, a 60% arthritis rating. [00:04:30] Speaker 01: It doesn't turn that into 100% arthritis. [00:04:32] Speaker 01: It's still a 60% rating that then determines unemployability. [00:04:35] Speaker 01: And so our argument... The total rating. [00:04:38] Speaker 01: I mean, I see it's compensated as a total rating. [00:04:41] Speaker 04: I think they could have interpreted it one way. [00:04:42] Speaker 04: They probably would have lost with us, given the way we tend to do things. [00:04:46] Speaker 04: It is one disability that gets a total rating under TDIU versus schedule. [00:04:52] Speaker 04: They're still talking about, in those cases where they allow it on TDIU, one disability. [00:04:57] Speaker 04: You want us to extend it to multiple disabilities, which seems in conflict with the plain language of 1114S. [00:05:04] Speaker 01: I will answer that quickly and then I'm going to move on to my alternative argument because I want to make sure that we cover that as well. [00:05:09] Speaker 01: Your Honor, the TDIU rating, we call it TDIU, total disability based on individual unemployability. [00:05:15] Speaker 01: The language of the regulation is total disability ratings for compensation may be assigned where the scheduler rating is less than total. [00:05:24] Speaker 01: I agree, Your Honor, that there's no reason why the VA had to ever award it in a TDIU context, but the Veterans Court in Bradley said that a TDIU does qualify. [00:05:33] Speaker 01: And our position is simply, if some TDIUs qualify, there is no logical coherence to the position that some should and some shouldn't. [00:05:42] Speaker 04: That's making my question a bit too far, because the logical coherence is that you have one disability that warrants a total rating. [00:05:49] Speaker 04: under TDIU, so it's still one disability. [00:05:52] Speaker 01: And my answer would be that it's not a disability rated as total, it's a disability compensated at a total rating. [00:05:58] Speaker 01: Let me just move on to the alternative argument, however, because I think that if your honors are not willing to consider a TDIU as, let's say, a proxy, and unemployability stands in for all of the underlying disabilities, it is one thing, then our alternative argument is that [00:06:12] Speaker 01: This court has weighed in on the language, a service-connected disability. [00:06:16] Speaker 01: It weighed in in one case. [00:06:18] Speaker 01: It's the Goerter case. [00:06:19] Speaker 01: It was a panel majority decision, 2-1, based on Chevron deference. [00:06:23] Speaker 01: The court explicitly found, precisely because of what Your Honor has pointed to, [00:06:27] Speaker 01: that it uses a disability the first time and then later disability or disabilities, the panel majority, Judge Bryson writing for the majority, found that the language was ambiguous and relied entirely on Chevron deference. [00:06:40] Speaker 01: Here's your problem on that. [00:06:42] Speaker 04: After Loper-Brite, we look at ambiguity in a different way. [00:06:46] Speaker 04: And so we don't have to [00:06:48] Speaker 04: To Guerra, it clearly is not binding on us if we agree that this is not. [00:06:55] Speaker 04: Well, let me take that back, because I don't want to get into the retroactivity of Loper Bright. [00:06:59] Speaker 04: But let's just assume that it's not binding on us. [00:07:01] Speaker 04: We still would look at this, and we're not bound by its notion that this is ambiguous. [00:07:07] Speaker 01: That's correct, Your Honor. [00:07:07] Speaker 04: We could find that this is plain in the way our conversation just had. [00:07:13] Speaker 04: And so Guerra doesn't help you or hurt you. [00:07:16] Speaker 01: Well, we would argue, Your Honors, that at best the language is ambiguous. [00:07:20] Speaker 01: I mean, Judge Gaiarza's dissenting opinion laid out a pretty compelling case that the language of 1114S, for example, tracks the language of 1114J, where nobody disputes that multiple disabilities can be compensated, even though it says the disability, again, singular. [00:07:34] Speaker 01: Even if we were to go with just a fresh look at the statute, the fact that we are talking about one use of a disability and another use of disability or disabilities renders the language at least arguably ambiguous. [00:07:49] Speaker 01: And if you're honest, we're to take another look. [00:07:51] Speaker 01: If it is ambiguous, we're left without Chevron deference now because it's been abrogated, it's been overruled. [00:07:56] Speaker 01: And we would argue that the pro-veteran canon pushes this. [00:07:59] Speaker 04: I mean, hasn't the Supreme Court really suggested that the pro-veterans canon [00:08:03] Speaker 04: at least in a couple of concurring or dissenting opinions, has very little life left. [00:08:09] Speaker 01: It does have very little life left. [00:08:10] Speaker 00: Is it meant to take, if we conclude that the statute is unambiguous, then what role does the veterans' canon have? [00:08:17] Speaker 01: If the statute is unambiguous, then correct. [00:08:19] Speaker 01: The veterans' canon would not have any role. [00:08:21] Speaker 01: But our argument is that Judge Gaiarsa suggested it's unambiguous in his other direct, in his dissenting opinion, correct. [00:08:27] Speaker 01: But the panel majority's decision was clearly based on Chevron deference. [00:08:30] Speaker 01: So the panel majority of this court has determined that the language is ambiguous. [00:08:34] Speaker 01: That has not been overruled by Chevron. [00:08:38] Speaker 04: Yeah, but you know, that's, I mean, that was the whole problem with Chevron in some instances anyways, that when we had a hard question and we looked at it in the Supreme Court, [00:08:49] Speaker 04: started telling people to stop doing this. [00:08:51] Speaker 04: If it was close, we would say, it's close, it's ambiguous. [00:08:54] Speaker 04: We'll defer because of Chevron deference. [00:08:56] Speaker 04: We didn't actually push ourselves very hard, and I'm not being critical of the Garipano, but we didn't push ourselves very hard to actually do the work that we now have to do to say, oh, it truly is ambiguous. [00:09:11] Speaker 04: It was an easy, I don't want to say easy, but it was a way to get at a result. [00:09:17] Speaker 04: when it was hard to determine whether it was ambiguous to just say, well, let's just assume it's ambiguous. [00:09:22] Speaker 04: We defer to the agency. [00:09:24] Speaker 04: So the fact that that panel said it was ambiguous, I think, is equally unbinding on us, not binding on us. [00:09:32] Speaker 04: Sorry, Esther. [00:09:33] Speaker 01: No, go ahead. [00:09:34] Speaker 01: Again, I also want to attribute motives one way or the other on any panel decision as to ambiguity. [00:09:39] Speaker 01: We would argue that the language is ambiguity. [00:09:41] Speaker 01: It uses a disability the first time. [00:09:43] Speaker 01: It then uses disability or disabilities. [00:09:45] Speaker 01: It is viewed in the context of the overall statute. [00:09:47] Speaker 01: There are multiple uses of the word disability without any article. [00:09:51] Speaker 01: And then there's 1114-J, which uses the disability. [00:09:53] Speaker 01: And so we would argue. [00:09:54] Speaker 00: The language and local though, I mean, even if we get to your backup of the backup, isn't there [00:10:01] Speaker 00: Didn't the Supreme Court make clear, and this was the second biggest issue in Loper, which is we're not second guessing or calling into question previous statutory construction opinions that deferred to the regulation. [00:10:17] Speaker 00: Aren't you in your backup asking us to do precisely that? [00:10:22] Speaker 01: We're asking, I mean, we're asking you to revisit the Guera opinion under the principles of Res Judicata. [00:10:27] Speaker 01: Your Honour is correct that Loper-Bright made clear that it is not expressly itself overruling everything that ever relied on Chevron deference. [00:10:34] Speaker 01: We're simply are asking Your Honours, under normal principles of Res Judicata, to go back and take a look. [00:10:40] Speaker 00: Obviously it didn't say every case is off the books, but didn't their statement of limitation also apply to [00:10:48] Speaker 00: instances where there's been a court ruling in terms of interpreting a certain provision, we're not calling those into question automatically based on Loper. [00:10:58] Speaker 01: Correct. [00:10:58] Speaker 01: We're not calling into question automatically. [00:11:00] Speaker 01: Agreed. [00:11:00] Speaker 01: And that's why we're arguing that the review here should be de novo. [00:11:04] Speaker 01: Your honor should take a look at the statutory language. [00:11:07] Speaker 01: We'd argue it's ambiguous. [00:11:08] Speaker 01: We'd argue that the pro-veteran canon, despite concurring opinions from the Supreme Court that have suggested that it may not have the force it once did, we would argue that your honor should take a fresh look at this under de novo review, under normal principles of Res Judicata. [00:11:21] Speaker 01: It was, in conjunction with that review, [00:11:24] Speaker 01: We would ask, Your Honors, to look at Judge Garros' dissenting opinion in Guerra and take that into consideration. [00:11:30] Speaker 02: You have another back-up argument about the regulation. [00:11:33] Speaker 02: I do, Your Honor. [00:11:33] Speaker 02: That, I think, turns on this language for the above purpose. [00:11:37] Speaker 02: It does. [00:11:38] Speaker 02: What is that language doing there on your view? [00:11:42] Speaker 02: Because you say it doesn't cabin the idea of 4.16a to 4.16a. [00:11:48] Speaker 02: You want it to carry over to the SMC statute. [00:11:51] Speaker 02: So then what is for the above purpose doing? [00:11:54] Speaker 01: Absolutely. [00:11:54] Speaker 01: So I think this actually calls back to a point that was made in the previous argument where somebody said that the word only does not appear in the statute. [00:12:02] Speaker 01: It does not say, the regulation does not say only for the above purposes. [00:12:06] Speaker 01: And quite frankly, I think that there's been this attempt to divide the TDIU regulation here from the SMC in a way that suggests that it's unrelated here. [00:12:15] Speaker 01: We're not arguing that the TDIU regulation is an interpretation of the SMC statute. [00:12:20] Speaker 01: Our position is, [00:12:21] Speaker 01: We don't think that there should be any requirement in the first place that the veterans show he has one disability. [00:12:27] Speaker 02: I'll grant you that it doesn't say only for the above purpose. [00:12:31] Speaker 02: That's true. [00:12:33] Speaker 02: But what difference would it make in your view if it didn't even say for the above purpose? [00:12:38] Speaker 02: Isn't your reading suggests to me that for the above purpose is doing nothing? [00:12:43] Speaker 02: Because if we just started with the rest of the sentence, [00:12:48] Speaker 02: then you would still use this and maybe you would use it elsewhere. [00:12:55] Speaker 01: For the above purpose means that when you are making a determination of whether the veteran is entitled to a TDI, there are different ways in which a veteran can [00:13:05] Speaker 01: reach a certain level. [00:13:07] Speaker 01: One of them involves one disability and one of them involves multiple disabilities and that section of the regulation is harkening back to the earlier distinction between one disability and multiple disabilities and saying for the purposes of making the TDIU determination [00:13:21] Speaker 01: These are the things that are considered one disability. [00:13:23] Speaker 01: Now, even if we were to say it's only for that purpose, it is the secretary's regulation that establishes that a veteran can obtain a TDIU rating based on multiple disabilities that qualify as one disability and then it lays out the ways in doing so. [00:13:39] Speaker 01: And then, when applying [00:13:41] Speaker 01: for special monthly compensation, based on that exact same TDIU, it's the secretary's position that now the TDIU is actually based on multiple disabilities, even though they classified them all as one disability when making the TDIU determination. [00:13:56] Speaker 01: That's an inconsistent position as well, and we think that the Youngblood decision is simply incorrectly decided because it attributes motives to why the secretary promulgated those regulations that are not in there. [00:14:07] Speaker 01: I'll reserve the book for my time. [00:14:14] Speaker 03: Thank you. [00:14:18] Speaker 03: Good morning and may it please the court. [00:14:20] Speaker 03: Entitlement to special monthly compensation under section 1114S requires first and foremost a service-connected disability rated as total. [00:14:29] Speaker 03: Mr. Mackey, however, does not have any one service-connected disability rated as total. [00:14:34] Speaker 03: Therefore, the Veterans Court correctly held that Mr. Mackey is not entitled to special monthly compensation. [00:14:39] Speaker 03: Mr. Mackey essentially makes two arguments in response. [00:14:42] Speaker 03: His first argument is that multiple disabilities should be combined into [00:14:49] Speaker 03: a single total rating in order to satisfy that first clause of Section 1114S. [00:14:55] Speaker 03: That position is not only contradicted by the express language of 1114S, which clearly says a service-connected disability in the singular, as distinguished from other portions of 1114S which talk about disability or disabilities as alternatives of each other, but it's also been rejected by this court in Guerra, where the court went through the statutory text [00:15:18] Speaker 03: and expressly held that that statutory text requires a single service-connected disability. [00:15:24] Speaker 00: Why do you need GUERA? [00:15:26] Speaker 00: I mean, we've introduced kind of another major legal debate here about Lope or Bright and everything by reliance on GUERA. [00:15:36] Speaker 00: Does in this case begin and end with the statute? [00:15:38] Speaker 03: It does begin and end with the statute, your honor, but this court has already interpreted the statute and this panel is bound by the panel decision. [00:15:46] Speaker 00: Are we bound by the fact that they thought there was some ambiguity in the statute? [00:15:50] Speaker 00: We can't read the statute ourselves and find no ambiguity. [00:15:53] Speaker 03: So I do want to clarify that point. [00:15:54] Speaker 03: I don't think GUERRA said there is ambiguity in the statute. [00:15:59] Speaker 03: What the GUERRA court did is they went through the statutory text. [00:16:02] Speaker 03: They explained why that text refers to a single service connected disability. [00:16:07] Speaker 03: And then they said at the end of this analysis, but the statutory text is not free from ambiguity. [00:16:13] Speaker 03: And in any event, we owe deference to the secretary's interpretation as expressed in the SMC regulation. [00:16:20] Speaker 03: So I don't think it's accurate to describe. [00:16:23] Speaker 04: That sounds like it said if we made this analysis and it did exactly what I was suggesting, and I'm not attributing any poor motives to judges. [00:16:32] Speaker 04: I'm sure I did this myself before Loverbright. [00:16:35] Speaker 04: If they're suggesting a tagline, it may not be the clearest thing. [00:16:40] Speaker 04: If it's ambiguous, we defer. [00:16:43] Speaker 03: I think that's exactly what they did to choose. [00:16:46] Speaker 03: I think they- So are we, are we bound by that? [00:16:48] Speaker 04: Yes, because the, the initial part of the analysis- I don't know why you want to make this hard argument that we're bound by Guerra and Loper-Bright didn't allow us to revisit it when you have what seems to be a pretty good plain language argument. [00:17:00] Speaker 00: But we're not, you're not saying we're bound by the fact that they alternatively as a belt of suspenders matter said, [00:17:08] Speaker 00: Even if, essentially, even if there were a little ambiguity, we'd turn to the rec. [00:17:14] Speaker 00: We're not bound by having to turn to the rec. [00:17:17] Speaker 03: Absolutely correct, Judge Prost. [00:17:19] Speaker 03: You're not bound by that alternative holding. [00:17:22] Speaker 03: What I think the panel is bound by is Guerra's analysis of the statutory text. [00:17:27] Speaker 03: Now look, at the end of the day, I think you're right. [00:17:30] Speaker 03: We have a very strong argument based on the statutory text itself. [00:17:34] Speaker 03: And we don't need to turn to GUERA. [00:17:37] Speaker 03: But there's a few important things to remember here if the court is thinking about looking at this question anew. [00:17:43] Speaker 03: The first part is that this argument about overturning GUERA does not appear until Mr. Mackey's reply brief. [00:17:50] Speaker 03: It does not appear in the opening brief. [00:17:51] Speaker 03: It does not appear in briefing before the Veterans Court. [00:17:54] Speaker 03: So the argument about overturning GUERA has been forfeited. [00:17:58] Speaker 03: Now, separately from that. [00:17:59] Speaker 00: But how do we overturn GUERA if we were going to go a month? [00:18:03] Speaker 00: And if we're going to go on bonk on a result that says there's no ambiguity or we're going to rely on the regulation, then we take this case on bonk. [00:18:12] Speaker 03: Yes, you could always take up the case on Bonk and overturn Guerra on Bonk, but you would have to go on Bonk to do that. [00:18:19] Speaker 03: But the other point I want to emphasize, and Judge Prost, I think you mentioned this in your colloquy with my friend on the other side, Loper-Brite made clear that prior reliance on Chevron deference is not itself a reason to overrule cases because [00:18:37] Speaker 03: those cases still involve statutory stare decisis. [00:18:41] Speaker 03: And that's exactly what Mr. Mackey is asking the court to do here. [00:18:44] Speaker 03: They're asking the court to overrule Guerra for the simple reason that there is a reference to Chevron deference here. [00:18:51] Speaker 03: And that's simply not the way Loper-Brite said it should be applied. [00:18:58] Speaker 04: Here's what I struggle with. [00:19:01] Speaker 04: And I know it's not really an issue in this case. [00:19:05] Speaker 04: If it requires a single service-connected disability rated as total, can they get it for TDIU at all? [00:19:14] Speaker 04: Right. [00:19:14] Speaker 04: So that goes back. [00:19:16] Speaker 04: It sounds like, frankly, that reading this statute that's not consistent with the plain language, that if they have a 60% rating, [00:19:26] Speaker 04: of a disability, even if it guarantees them TDIU, it's not a disability rated as total. [00:19:32] Speaker 04: It's a disability that entitles them to total compensation because of unemployability. [00:19:38] Speaker 04: I know you're not asking us to overturn that, and we wouldn't overturn that. [00:19:42] Speaker 04: I suppose if you want to be more generous than the statute allows, you can. [00:19:47] Speaker 04: But it does seem to me that if we're looking at this in terms of the purpose of SMC, [00:19:53] Speaker 04: that there's very little practical difference between one disability that gets you TDIU and two disabilities that get you TDIU. [00:20:04] Speaker 04: The veteran is so seriously disabled because of that that he or she cannot work. [00:20:12] Speaker 03: So the difference, Judge Hughes, is that one satisfies the SMC statute and the other does not. [00:20:20] Speaker 04: I'm not sure it does. [00:20:22] Speaker 04: That's my point. [00:20:23] Speaker 04: I think neither of them do. [00:20:26] Speaker 04: And so if one of them does, then why doesn't both of them? [00:20:31] Speaker 03: So here's why we don't disagree with the Veterans Court's decision in Bradley, which is where this line really comes from. [00:20:38] Speaker 03: What the Veterans Court said in Bradley is that TDAU can satisfy the rated as total part of the first clause of 1114S. [00:20:47] Speaker 03: Even if you have a disability that's not itself rated a hundred percent under the scheduler rating, TDIU gives it the rated as total part necessary for 1114S. [00:20:59] Speaker 03: And we don't disagree with that, but what's important under the SMC statute is that rated as total still has to be corresponding to a service-connected disability. [00:21:08] Speaker 04: So your reading of this is service-connected disability can get to a total rating either through the schedule or through TDIU. [00:21:15] Speaker 04: Exactly. [00:21:15] Speaker 03: That's what we think. [00:21:17] Speaker 04: That's exactly right. [00:21:25] Speaker 03: It still has to be a service-connected disability. [00:21:28] Speaker 04: Because, Judge Hughes, as you correctly pointed out... [00:21:33] Speaker 04: It doesn't really make any sense in the way this SMC statute works in terms of trying to give extra benefits for people who are severely disabled to distinguish between those two things. [00:21:44] Speaker 04: But if that's what the language does, that's what the language does. [00:21:47] Speaker 03: Right. [00:21:47] Speaker 03: And unfortunately, we can't disagree with what the language of the statute says. [00:21:52] Speaker 03: That's a congressional decision. [00:21:54] Speaker 03: It's a congressional intent. [00:21:56] Speaker 03: And if Congress wants to revisit that and change... I mean, is there any practical difference [00:22:02] Speaker 04: For purposes of the SMC stuff that a person is is totally it gets TDIU from one disabilities versus two they still have the same degree of impairment and. [00:22:14] Speaker 04: inability to work, which all of this is based on. [00:22:17] Speaker 04: And so if they have TDIU from two disabilities and then have another 60% disability, that didn't sound to me like they're any different situation, practically speaking, than the person that has one disability that's TDIU and has another at 60. [00:22:34] Speaker 03: So there might be a practical distinction there in the sense that TDIU allows veterans to combine a number of disabilities for this total rating based on individual unemployability, whereas the SMC statute requires a single disability that's totally rated, again, whether through TDIU or 100% schedule rating. [00:22:51] Speaker 04: I understand that, but to me that if you're going to allow TDIU, it makes little sense. [00:22:56] Speaker 04: And this is a theoretical. [00:22:58] Speaker 04: discussion because clearly the statute says what it says, but it just doesn't seem very logical in the way TDIU predicts a person's inability to work to make a difference between one disability or two. [00:23:12] Speaker 03: And I think it's logical because of the a service-connected disability requirement. [00:23:17] Speaker 03: It has to be one disability. [00:23:20] Speaker 03: That's what Congress wrote into the statute. [00:23:22] Speaker 02: Can you help me then on the Graybrief page 17, footnote three? [00:23:28] Speaker 02: Mr. Manke's counsel sets out a scenario where comparing a veteran who has a single 60% disability rating that qualifies for TDIU, that person under your reading is eligible for SMC potentially, as I understand it. [00:23:47] Speaker 02: But if that, compared with a veteran who has a 60% plus a 10%, that person is not eligible for SMC. [00:23:56] Speaker 03: Is that your position? [00:23:57] Speaker 03: No. [00:23:58] Speaker 03: No, that footnote is wrong. [00:24:00] Speaker 03: And all you have to do to see that it's wrong is to refer back to the Bradley decision from the Veterans Court and the Bowie decision from the Veterans Court. [00:24:08] Speaker 03: In both of those cases, you had veterans with multiple disabilities that together combined for a rating of 3. [00:24:15] Speaker 03: And what the Veterans Court said in both cases is that the veteran is not entitled to SMC because the TDAU is a product of multiple combined disabilities. [00:24:28] Speaker 03: But at the same time, the Veterans Court then remanded the case back to the RO for a determination whether any one of those disabilities could have itself been [00:24:40] Speaker 03: been the reason for the veteran to obtain TDAU. [00:24:43] Speaker 03: So in this situation, in this hypothetical that's provided in footnote three, if you have a veteran with a 60% rating and a 10% rating and a TDAU that combines the two, what would happen is what happened in Bradley and Bowie, where the Veterans Court would remand the matter back to the RO for a determination whether the 60% disability was itself sufficient for TDAU. [00:25:06] Speaker 02: And that's mandated by the pro-veteran canon, I think those courts say? [00:25:11] Speaker 02: Or that would be one question. [00:25:13] Speaker 02: But the other question is, is that something the government's asking us to endorse in this case? [00:25:19] Speaker 03: No. [00:25:20] Speaker 03: There's no applicability here for the pro-veteran canon, because the statutory language is clear. [00:25:25] Speaker 03: And this court has said time and again that when there is no ambiguity, the veterans canon has to go. [00:25:29] Speaker 02: And I asked three different confusing questions. [00:25:32] Speaker 02: My apologies. [00:25:33] Speaker 02: This scenario, if I'm concerned about the scenario, [00:25:36] Speaker 02: in the footnote, which you've now explained to me. [00:25:38] Speaker 02: I think it's a good explanation for why, in real life, this is not a problem. [00:25:44] Speaker 02: Has the federal circuit ever weighed in on why this kind of scenario can't really happen? [00:25:49] Speaker 02: It's not a problem? [00:25:50] Speaker 02: Or is that just the Veterans Court authority? [00:25:52] Speaker 03: That's Veterans Court authority. [00:25:53] Speaker 03: This court has never reviewed SMC in the context of TDIU ratings. [00:25:59] Speaker 03: Guerra did not have it. [00:26:00] Speaker 02: So is the issue raised in this footnote [00:26:03] Speaker 02: Is it presented in this case such that we should reach it? [00:26:07] Speaker 02: Do you have a view on that? [00:26:08] Speaker 03: Yes, I do have a view. [00:26:09] Speaker 03: It is not presented in this case. [00:26:11] Speaker 03: The reason it's not presented in this case is because in the board decision reviewing Mr. Mackey's claim, the board made clear that the only single disability that was rated high enough to possibly give him TDIU on that basis alone is not sufficient for TDIU. [00:26:29] Speaker 03: And if I can. [00:26:32] Speaker 02: I think I've seen that. [00:26:33] Speaker 02: And it would be a fact issue that we couldn't reach anyway. [00:26:36] Speaker 03: It would be a fact issue anyway. [00:26:37] Speaker 03: But I'll just provide the citation for the court. [00:26:42] Speaker 03: At page 20 of the joint appendix, there is a paragraph that ends at the top of the page. [00:26:50] Speaker 03: And the concluding sentence of that paragraph reads, there is no indication that the veteran's bowel incontinence alone precludes him from employment. [00:27:00] Speaker 03: That is a holding. [00:27:02] Speaker 03: The bowel incontinence, and that's the highest rated disability that Mr. Mackey had. [00:27:06] Speaker 03: It's the only one that reached the 60% threshold. [00:27:09] Speaker 04: That 60% is what could be used for SMC if he had another disability rated as total, right? [00:27:15] Speaker 03: That 60% could potentially be the sole reason for TDIU. [00:27:21] Speaker 04: No, no, no, no. [00:27:21] Speaker 04: I understand that they said it wasn't TDIU. [00:27:24] Speaker 04: Yes. [00:27:27] Speaker 04: for one of the special monthly compensations, you have to have a total disability and then another rated at 60. [00:27:35] Speaker 03: That's correct. [00:27:35] Speaker 04: So that could qualify as the other at 60, but he doesn't have the predicate of a single disability rated under TDRU or schedule. [00:27:45] Speaker 04: So in this case, because we know the veterans, [00:27:49] Speaker 04: going back and getting new ratings and stuff. [00:27:51] Speaker 04: If one of these other ratings suddenly gets elevated to be sufficient for TDIU, then we could see this as a new material evidence claim and that 60% rating for bowel incontinence in combination with [00:28:05] Speaker 04: a single TDIU rating might come entitled to him to it sometime in the future. [00:28:10] Speaker 03: It could potentially in another case. [00:28:12] Speaker 03: In this case, of course, it's not possible because no single disability could entitle Mr. Mackey separately to TDIU. [00:28:19] Speaker 03: And so you don't get to that second part of the analysis. [00:28:21] Speaker 04: So he just needs to go find a disability that's either a schedule or 100% or a TDI, single TDIU that's rated at total. [00:28:31] Speaker 03: It's unfortunate, but his disabilities simply do not qualify for SMC. [00:28:35] Speaker 00: I have a question that's neither here nor there. [00:28:39] Speaker 00: I'm just curious, which is the statutory language itself includes an express dollar amount. [00:28:44] Speaker 00: And I can't recall seeing that in statutes, largely because of inflation and other things. [00:28:51] Speaker 00: Is this amount the only amount? [00:28:53] Speaker 00: Has this amount been sort of in place for years and years and years, the same amount? [00:28:57] Speaker 00: Or does it vary? [00:29:00] Speaker 03: So this amount has been in place for some time, but it didn't start with that amount. [00:29:05] Speaker 03: Congress keeps increasing the amount in the SMC statute. [00:29:08] Speaker 00: It's very unusual. [00:29:09] Speaker 03: Yes. [00:29:10] Speaker 03: I think the starting amount was in the tens of dollars and then slowly it increased to the amount. [00:29:16] Speaker 04: Well, all the schedules, I mean, every single one like has a dollar. [00:29:20] Speaker 04: We don't see these often because once you get it, it's automatic. [00:29:23] Speaker 04: But if you have 10%, you get this amount of money. [00:29:26] Speaker 04: If you get 20, you get this amount of money because it's all built up on impact to earnings capacity. [00:29:33] Speaker 04: And I don't understand the formula for that amount. [00:29:36] Speaker 04: But the reason this is not is because it's a whole chain of building up from you get very little if you're 10% up to if you get the entirety of the special monthly compensation, you get a lot. [00:29:48] Speaker 03: That's correct. [00:29:49] Speaker 03: All the amounts in Section 1114 from A, which is 10%, to J, which is total disability, they've all changed over the years. [00:29:57] Speaker 02: The regulation, just briefly, for the above purpose, isn't your position asking us to read that as only for the above purpose? [00:30:09] Speaker 03: Right. [00:30:09] Speaker 03: We're simply asking the court to give credit to what the secretary said in the regulation. [00:30:17] Speaker 03: And what the secretary said is the TDAU regulation, the One Disability Clause in Section 416A, is for the specific purpose of distinguishing between schedulers. [00:30:28] Speaker 02: That's what I'm struggling with. [00:30:30] Speaker 02: For you to win, don't I need to read in for the specific purpose, for the limited purpose, or only for this purpose? [00:30:36] Speaker 02: Otherwise, why wouldn't, as a matter of common sense, treating the multiple disabilities as a single disability, as one disability, why wouldn't it carry over? [00:30:46] Speaker 02: to the SMC statute? [00:30:48] Speaker 03: So two answers, Your Honor. [00:30:49] Speaker 03: First, just looking at the language of the regulation, it says for the above purpose. [00:30:54] Speaker 03: It doesn't say for a purpose. [00:30:56] Speaker 03: It says for the above purpose, the definite Article V, which indicates, as the Veterans Court correctly held in Youngblood, that there is only one purpose. [00:31:06] Speaker 03: And that purpose is distinguishing between scheduler and extra scheduler TDIU. [00:31:11] Speaker 03: There's nothing in that regulation that suggests it relates in any way to SMC. [00:31:15] Speaker 03: There's nothing in [00:31:16] Speaker 03: the process of implementing this regulation that suggests in any way that it relates to SMC. [00:31:21] Speaker 03: It's a regulation about TDIU. [00:31:23] Speaker 03: My second response to you though, Your Honor, is that what this regulation does is allow veterans to combine certain disabilities for a particular purpose. [00:31:34] Speaker 03: That may be appropriate for TDAU, which is itself a creature of regulation. [00:31:38] Speaker 03: But the SMC statute does not permit veterans to combine disabilities for the purpose of establishing SMC. [00:31:45] Speaker 03: The statute says a service-connected regulation. [00:31:50] Speaker 03: And because it says a service-connected regulation, it doesn't matter what combination a regulation allows veterans to make. [00:31:57] Speaker 03: The statutory language controls. [00:32:01] Speaker 00: Thank you. [00:32:01] Speaker 03: Thank you. [00:32:01] Speaker ?: Thank you. [00:32:04] Speaker 00: We'll give you a total of three minutes, rebuttal, if you need it. [00:32:08] Speaker 00: Thank you, Your Honor. [00:32:10] Speaker 01: I'd like to make three points in rebuttal. [00:32:11] Speaker 01: The first is, to Judge Hughes's point, I think Your Honor is correct. [00:32:14] Speaker 01: There has not been any policy rationale justifying why two similarly situated veterans both have a TDIU, both are unable to work, one should qualify for or be able to qualify for SMC, and the other should not. [00:32:27] Speaker 01: which relates to the hypothetical on page 17 of our reply brief. [00:32:33] Speaker 01: I think even if the court remands back to the board for a determination of whether or not the reshuffling could result in a TDIU and the board determines that it can't, you could still have a veteran who has 60 plus 10 or, by the way, 50 plus 40 and is way more disabled but simply unable to qualify because [00:32:55] Speaker 01: He's got more than one in the TDIU. [00:32:57] Speaker 01: There's no reason, there's no basis for, Congress never expressed an intent to distinguish between veterans this way. [00:33:03] Speaker 04: Well, except for the language of the statute seems to be most plainly read as in favor of a single disability and allowing the TDIU is that, you know, with one disability kind of makes sense, but isn't necessarily plainly included. [00:33:22] Speaker 04: So it seems like they've gone. [00:33:23] Speaker 04: part of the way by being generous, and if Congress wants to go the rest of the way, then they should change the statute. [00:33:30] Speaker 01: We would argue that the footnote on our reply we found at 17 is borderline absurd, and Congress would never have intended that result. [00:33:41] Speaker 04: I would read this as Congress not intending TDIU at all. [00:33:46] Speaker 04: rather than the other way. [00:33:48] Speaker 01: And we would suggest that that renders the secretary's position incoherent. [00:33:53] Speaker 01: Just to address the regulation, your honor, I think even if your honors hold that it only applies for the above purposes, [00:34:01] Speaker 01: We are not the party who's arguing that the veteran should ever have to show one disability at all. [00:34:05] Speaker 01: That's the governor's position. [00:34:07] Speaker 01: And your honor seem to believe that it's based on the plain language of the statute, but they've characterized under the secretary's authority to promulgate regulations for applying the law. [00:34:16] Speaker 01: they've characterized multiple disabilities as one disability for determining a TDIU, and then they say that if you have a TDIU based on what we call one disability, you still can't qualify for SMC. [00:34:28] Speaker 01: That's moving the goalposts, Your Honor. [00:34:30] Speaker 01: We'd ask that the Court reverse the interpretation of the statute and the regulation and remand for further proceedings.