[00:00:00] Speaker 00: Good morning, Council. [00:00:14] Speaker 06: Mr. Hyde, please proceed when you're ready. [00:00:32] Speaker 05: morning your honors and please the court. [00:00:35] Speaker 05: Bradley High from Latham and Watkins law firm. [00:00:37] Speaker 05: Here with me is co-counsel is Miss Adriana Erquiaga, Mr. Gabriel Bell, and Mr. Mike David. [00:00:45] Speaker 05: It is our great privilege [00:00:47] Speaker 05: to act as Pro Bono Counsel for Appellant Jason Sissle, a veteran of both the U.S. [00:00:52] Speaker 05: Marine Corps and the United States Army, and who has injured in service of our nation in support of Operation Iraqi Freedom. [00:01:00] Speaker 05: A veteran who struggled to regain his ability to walk through over 16 months of rehabilitation after being medically evacuated from country. [00:01:08] Speaker 05: Now, fortunately, I'm not alone in my support for Mr. Sissel, as in addition to other members of the Latham-Lockins team who have stepped in to help, Mr. Sissel is joined by the National Veterans and Legal Services Program, as well as a host of amici who have filed briefings in support of this appeal, including two military law professors and five different veterans' non-profits organizations. [00:01:32] Speaker 05: Now all of these people, Your Honor, have come together to help remedy an injustice which occurs when a soldier is wounded in service of our nation but is denied adequate disability compensation that they are entitled to under the law. [00:01:47] Speaker 05: Now the facts in this case are relatively simple, Your Honors. [00:01:50] Speaker 05: Mr. Sissel was diagnosed with degenerative disease of the lumbar spine for his lower back and dense hypothesia and weakness of the right leg for his right leg. [00:02:00] Speaker 05: Both Mr. Sissel's back and right leg conditions were separately found to fall below retention standards by the Military Evaluation Board, which evaluates whether a soldier should be recommended for military separation. [00:02:14] Speaker 05: Similarly, both Mr. Sissel's back and right leg condition were listed as unfitting conditions by the Physical Evaluation Board, which ultimately decides whether a soldier's condition renders them unfit to continue service. [00:02:28] Speaker 05: Now, there's no dispute here, Your Honors, that the law requires that any disabilities be rated utilizing the VA rating schedule. [00:02:37] Speaker 05: And here, under the VA rating schedule, Mr. Sissel's right leg and back conditions should have been rated separately for a combined rating of 30% qualifying him for medical retirement. [00:02:48] Speaker 05: However, in this case, the PEB, Physical Evaluation Board, [00:02:53] Speaker 05: failed to separately rate Mr. Sissel's right leg conditioning, denying him medical retirement. [00:02:59] Speaker 05: Now, importantly here, Your Honors, the VA, who separately rates soldiers for disability, did correctly separately rate Mr. Sissel's right leg condition, assigning him a total rating of 30%. [00:03:09] Speaker 05: Now, I wish, Your Honor, that this was an isolated incident, but Congress has already determined this was not an isolated incident. [00:03:18] Speaker 05: In fact, in 2008, Congress passed the Wounded Warrior Act in order to correct, and I quote here, unfair and unjustifiably low disability ratings granted by the military for medical discharges. [00:03:30] Speaker 05: Now, the Wounded Warrior Act did a couple things to try and fix these disparities. [00:03:34] Speaker 05: The first, as I said before, they required the DOD to use the VA's rating schedule. [00:03:41] Speaker 05: The second is they set up the physical disability board review to evaluate ratings from soldiers who were medically discharged between 2001 and 2008. [00:03:49] Speaker 05: And as part of the board's responsibility, they must correct any errors that the physical evaluation board had in their disability rating. [00:03:58] Speaker 05: They cannot, however, lower a disability rating. [00:04:01] Speaker 05: Simply put, the board was put in a place only to help veterans and to fix the, again, quote, unfair and unjustifiable low disability ratings. [00:04:11] Speaker 05: Unfortunately, in this case, Your Honor, Mr. Sissel sought relief through the PDBR for his unjustifiably low rating, and the PDBR failed to correct that disability rating. [00:04:21] Speaker 05: And we've appealed up to this court today to remedy that. [00:04:25] Speaker 05: Now, in our briefings, we make four primary arguments as to why this court should grant relief. [00:04:30] Speaker 05: The first is answering a court's question is whether the PDBR is entitled to heightened deference. [00:04:36] Speaker 05: Your Honor, as we said in our brief, the PBR is not entitled to heightened deference. [00:04:40] Speaker 05: The other three arguments is that it's not, it's contrary to law because they did not apply the appropriate governing regulations. [00:04:48] Speaker 05: It is not supported by substantial evidence because the record does not support the PDR's decision and that the record is not properly explained. [00:04:57] Speaker 05: I'm happy to summarize those and answer any questions you may have. [00:04:59] Speaker 07: Can I ask your opinion about? [00:05:00] Speaker 07: what the best reading of the board's decision is. [00:05:04] Speaker 07: And so when I say board, I'm thinking PEB, and then board, and then I guess Dr. Kibble after that, so board. [00:05:13] Speaker 07: The leg did not contribute to unfitness. [00:05:22] Speaker 07: Did the board say that? [00:05:24] Speaker 07: No, Your Honors. [00:05:26] Speaker 07: What's the best argument for why they didn't say that? [00:05:28] Speaker 05: They didn't say that. [00:05:29] Speaker 05: What they said is they went into this additional analysis to determine whether the leg was separately unfitting or substantially unfitting. [00:05:38] Speaker 05: And as we argue in our briefs here, that's contrary to law. [00:05:41] Speaker 05: That's not what the Army regulation requires. [00:05:43] Speaker 05: Army Regulation 635-40 states that unfitting conditions and those which contribute to unfitness shall be used in evaluating the standard here. [00:05:53] Speaker 05: The PEB, excuse me, the PDBR, inexplicably went through this additional heightened standard here to determine whether it should be separately unfitting. [00:06:02] Speaker 05: Now, there's another section, another portion of Army Regulation 635-40, which I think is also important here. [00:06:10] Speaker 07: Before you get into what the regulations say, I'm focused on what the board said. [00:06:17] Speaker 07: And I think your reading of the board might be right. [00:06:21] Speaker 07: I suspect when the government's up here, they're going to say you're misreading the board. [00:06:27] Speaker 07: and that in fact the board said the leg does not contribute to unfitness. [00:06:35] Speaker 07: What's your best sentence or paragraph or part of the board's decision that would prove them wrong? [00:06:42] Speaker 07: What's the best part in the board decision that you can point to and say, aha, the board said the leg contributes to unfitness. [00:06:54] Speaker 05: I think that there's no statement where the board says the leg contributes to fitness. [00:06:59] Speaker 05: The board goes through and analyzes, Your Honor, what specific diagnoses in his record was related to the leg, what functional limitations may be related to the leg here. [00:07:10] Speaker 05: But their analysis was focused on evaluating whether the leg was separately unfitting here. [00:07:16] Speaker 05: That's where their analysis was focused. [00:07:17] Speaker 07: But the first thing you said, and I think it's good for you if this is the case, and I think you might be right. [00:07:21] Speaker 07: This is not a hostile question. [00:07:23] Speaker 07: is that the board decision at least could be read to imply, let's say, that the leg contributed to unfitness. [00:07:34] Speaker 05: I believe it could. [00:07:35] Speaker 07: They do not explicitly say that we recognize. [00:07:37] Speaker 07: So what in it would you point to? [00:07:40] Speaker 07: Maybe this is what you were just saying and catching it. [00:07:42] Speaker 07: What in the decision would you point to to say, aha, this shows that when we read the board's decision, we should think the board [00:07:53] Speaker 07: is recognizing that the leg contributes to unfitness. [00:07:58] Speaker 05: There's a few areas, Your Honor. [00:08:00] Speaker 05: Both Board and Dr. Kibble recognized that the leg was included in the constellation of conditions here. [00:08:06] Speaker 05: So the Board and Dr. Kibble recognized that the PEB determined that the right leg was something that contributed to his disability. [00:08:15] Speaker 05: That didn't seem to be in dispute. [00:08:16] Speaker 05: And I don't think that the government's going to appear and say that that's disputed here. [00:08:19] Speaker 05: They just went through this separate analysis to determine whether it's separately. [00:08:24] Speaker 05: To add into the fact that they recognized that it was included in the constellation, the board walks through and notes that the PEB listed it as a separately fitting. [00:08:32] Speaker 05: The board notes that the PEB listed as unfitting condition. [00:08:37] Speaker 05: The board notes the functional limitations that impact is right. [00:08:40] Speaker 05: In fact, the minority opinion in the PDBR in Mr. Sissel's first appeal explicitly came out and said, [00:08:45] Speaker 05: This is an unfitting condition. [00:08:47] Speaker 05: Look at all the functional limitations that are in each of these profile restrictions, each of these medical evaluations that would absolutely affect the right leg condition. [00:08:55] Speaker 05: And so there's numerous places, both in Dr. Kibble's opinion, in both PDBR decisions and the minority opinion, which recognize that the leg [00:09:02] Speaker 05: was and in fitting conditions. [00:09:04] Speaker 05: That doesn't seem to be P.D.B. [00:09:06] Speaker 05: listed there. [00:09:07] Speaker 05: The only question and analysis that the P.D.B.R. [00:09:09] Speaker 05: went through through its post-doc deliberations was whether it was separately unfitting, which we argue and believe just based on the plain text of the Army regulation is not what's required here. [00:09:20] Speaker 06: Is it at least conceivable and maybe your answer could be, well, it's conceivable, but that's not what happened. [00:09:25] Speaker 06: But just at the level of whether it's conceivable, [00:09:29] Speaker 06: The PDBR recognized that the PEB framed the inquiry in terms of the constellation of conditions, including the leg condition. [00:09:41] Speaker 06: But that doesn't necessarily mean that the PDBR signed on to that description. [00:09:46] Speaker 05: That's a great question, Your Honor. [00:09:48] Speaker 05: I want to point you to Army Regulations 635-40, the one that we've been looking for here. [00:09:53] Speaker 05: The PDBR is absolutely right that the PEB can list conditions that are non-ratable as part of the constellation. [00:10:01] Speaker 05: We don't dispute that. [00:10:02] Speaker 05: But section D of that same regulation states any non-ratable defects or conditions will be listed in item 8 of DA4199, that's the PE decision, but importantly, but will be annotated as non-ratable. [00:10:17] Speaker 05: but will be annotated as non-radable. [00:10:19] Speaker 05: If the PEB listed... And that didn't happen here. [00:10:22] Speaker 05: Didn't happen here. [00:10:24] Speaker 05: The PEB decision right here, they listed both the back and right leg. [00:10:28] Speaker 05: If they were [00:10:30] Speaker 05: intending the right leg to be an unradable condition, they were required under the governing regulation to note that. [00:10:38] Speaker 05: They didn't do that here. [00:10:39] Speaker 05: The PEB was required to do that. [00:10:40] Speaker 05: The PEB was required to do that. [00:10:41] Speaker 06: So then the PEB didn't do that. [00:10:44] Speaker 06: But then I guess it's still possible that the PDBR would have recognized that the PEB thought the leg condition [00:10:52] Speaker 06: was part of the constellation, but the PDBR could have disagreed with that and thought, well that's what the, and I'm gonna say that's what the PEB said, but my analysis shows that I don't think the leg condition was contributing. [00:11:06] Speaker 05: So both Dr. Kibble's opinion and the PDBR goes through and they both state that we presume that the PEB [00:11:16] Speaker 05: intended, jointly collected them as a constellation of conditions because it didn't think that they were independently rateable. [00:11:23] Speaker 05: They make that presumption. [00:11:24] Speaker 05: That is a wrong presumption in view of the governing regulation. [00:11:27] Speaker 05: So the PDBR wasn't going through and just saying, let me decide. [00:11:31] Speaker 05: They just improperly applied the governing regulation. [00:11:34] Speaker 05: They didn't see an annotation in there. [00:11:36] Speaker 05: They made a presumption that actually goes against the regulation. [00:11:39] Speaker 05: And then they engaged in some kind of post-hoc analysis. [00:11:42] Speaker 05: But to answer your direct question, the PDBR doesn't have the authority to lower ratings, to go through and take a rating or a disability rating that the PEB has already assessed as unfitting, and then through post-hoc deliberations say, well, you know what? [00:11:58] Speaker 05: We actually think that it is fitting. [00:12:00] Speaker 05: That goes, in fact, against the very purpose of the PDBR. [00:12:03] Speaker 05: The Wounded Warrior Act established the PDBR to correct the unjustifiably low disability ratings. [00:12:09] Speaker 05: They didn't establish the PDBR to go through and second guess the PEB and say, well, actually, we didn't think that's really unfitting. [00:12:16] Speaker 05: The whole purpose here of the PDBR is to help soldiers not go through and undermine these ratings and second guess the PEB, which explicitly listed the right leg condition as an unfitting condition. [00:12:33] Speaker 02: Under the Wounded Warrior Act, 1216A, B, the secretary is supposed to consider all medical conditions, whether individually or collectively, that render the member unfit. [00:12:51] Speaker 02: What does collectively mean? [00:12:54] Speaker 02: Your Honor. [00:12:55] Speaker 02: What is the statutory, how should we interpret that word? [00:12:57] Speaker 02: Because it could be that [00:13:00] Speaker 02: I have three injuries, neither of which by itself would render me unfit, but putting them together, it makes me unfit. [00:13:09] Speaker 02: And that combination of three. [00:13:12] Speaker 02: Or it could mean I've got one injury that makes me unfit, and I've got another injury that makes me even more unfit. [00:13:22] Speaker 02: which would affect disability ratings. [00:13:26] Speaker 02: Which is it and how do we know that from the statute? [00:13:29] Speaker 05: I don't think the statute gives us clarification there specifically on which distinction is going to be here. [00:13:34] Speaker 05: I think that one of the questions that arises from your hypothetical here, excuse me. [00:13:48] Speaker 02: So it seems to me that what's important here is for purposes of what the PD, the board is supposed to do, there's too many acronyms, the disability board is supposed to do. [00:14:01] Speaker 02: Is rate all, rate all conditions, consider all conditions. [00:14:07] Speaker 02: that individually or collectively render the member unfit. [00:14:13] Speaker 02: And the collectively there could have different meanings. [00:14:17] Speaker 02: It could mean I've got three injuries, neither of which by itself considered independently in an isolation would render me unfit. [00:14:28] Speaker 02: But that combination makes it impossible for me to continue in military service. [00:14:32] Speaker 02: That renders me unfit. [00:14:34] Speaker 02: You know, an arm limitation by itself might not be, but the arm and the leg and the eye all together make me unfit. [00:14:42] Speaker 02: Or it could mean that part of what they're supposed to look at is I've got an injury that renders me unfit. [00:14:51] Speaker 02: And I've got another injury that whether it by itself would render me unfit is a close question, but boy, it sure compounds. [00:15:03] Speaker 02: um, my inabilities and would render, you know, if I was just over the edge, if injury one just put me just over the edge on, on fitness, this one takes me to absolutely crystal clear unfit because it has such an impact on my life. [00:15:19] Speaker 02: Um, but it might, we don't have to know whether that one that exacerbates things is rendered renders me independent by itself would make me unfit. [00:15:26] Speaker 05: As long as it contributes to answer your question directly, Your Honor, I don't think the statute gives clarification of that specific question. [00:15:32] Speaker 05: We're not arguing, however, that you can't rate things together. [00:15:36] Speaker 05: For instance, if Mr. Sissel's right leg and back conditions were of the type that they could be rated together, as many conditions are, for instance, it's an injury of the spine and then the spine radiates to the leg, that could have been under the same diagnostic code. [00:15:51] Speaker 05: What's improper is when you have two conditions or three conditions, which are rendering a soldier unfit for duty, and then you rate those conditions, but the ratings you provide them are not in line with the VA schedule here. [00:16:04] Speaker 02: So in this case- Wait, so is it your position that there's a determination in this record, in the record that went to the disability board, that the leg all by itself rendered him unfit? [00:16:20] Speaker 02: Because we have the constellations, so they sort of wrapped them together that rendered them unfit from the, is that the medical evaluation? [00:16:28] Speaker 02: I don't know which acronym to use at this point, but the initial examiners at a couple different levels looked at it together. [00:16:36] Speaker 02: But there's not in this record, as I saw, a finding [00:16:40] Speaker 02: that the leg all by itself rendered him unfit. [00:16:44] Speaker 02: So that's why I think this definition collectively may make a difference. [00:16:50] Speaker 05: I think there's not a really explicit record evidence saying that the back by itself rendered it unfit. [00:16:57] Speaker 05: In each of these evaluations, they listed both his back and his right leg as rendering him unfit for service. [00:17:02] Speaker 05: The MEB listed them separately. [00:17:06] Speaker 05: as failing retention standards. [00:17:08] Speaker 05: And if one thing fails retention standards, you fail retention standards and you refer to the PEB boards here. [00:17:13] Speaker 05: So if either of those, if it was just his leg or just his back, he still would have been referred to the PEB. [00:17:20] Speaker 05: The PEB looked at both of those, looked at all the functional limitations that were provided from the MEB, the inability to run, the inability to walk more than two miles, to be able to fight in positions, to climb on vehicles. [00:17:30] Speaker 05: They assigned those same functional limitations, which were assigned to both his back and his leg, [00:17:35] Speaker 05: to that same final PV diagnosis here, things that implicate both the back and legs. [00:17:40] Speaker 05: The PDBR minority opinion and the first appeal here recognized that those same functional limitations, which are in every one of his evaluations and profiles after that, very fairly and likely should be contributed to his legs. [00:17:52] Speaker 05: I was in the Army myself for 10 years, I served in Afghanistan. [00:17:54] Speaker 05: I can tell you, running road marks and getting on vehicles affects your legs, probably more than your back in this. [00:18:01] Speaker 05: But I would say, Your Honor, that while the record, I think, [00:18:05] Speaker 05: pretty clearly shows that his right leg condition was on its own, failing retention standards on its own, separately unfitting, because they didn't annotate it as a non-ratable condition. [00:18:16] Speaker 05: Again, we don't need to go there, because the clear text of the 635-40 says, all you have to do is contribute to unfitness. [00:18:25] Speaker 05: Every court that's asked that question. [00:18:26] Speaker 02: I have the same question about what it means to contribute to unfitness. [00:18:30] Speaker 02: Same question with collectively. [00:18:32] Speaker 02: Does that mean that? [00:18:36] Speaker 02: If you've got one thing that makes you unfit, we don't need to ask the question anymore. [00:18:40] Speaker 02: You're unfit. [00:18:42] Speaker 02: But if you've got two or three things, none of which by itself would put you over the unfitness line, but together if they do, then they would contribute to unfitness. [00:18:53] Speaker 02: Or do we ask, well, we know one thing will get you on the unfitness line, and this other thing here pushes you way, way, way beyond the unfitness line. [00:19:04] Speaker 02: So even for contributor collectively, I'm just trying to understand how we're supposed to interpret these terms. [00:19:09] Speaker 05: I don't think there's really a distinction between those two interpretations. [00:19:12] Speaker 05: I think that the reason you continue to... What is the interpretation? [00:19:15] Speaker 02: Sorry. [00:19:16] Speaker 05: The interpretation of how you assume things collectively here, whether you're saying that you're just going to seem it all together or something's just going to push you over the line. [00:19:23] Speaker 05: The analysis here is really just determining what is your disability rating for your compensation here. [00:19:28] Speaker 05: So if you are assessed by the PEB to fail retention, to not be able to do your job, they're going to medically discharge you. [00:19:35] Speaker 05: And all these extra things that get added, whether they are listed as contributing or they're included in the constellation or they're even listed as not rateable, are there specifically just to determine what is your total disability rating at the end, which if it's greater than 30% is going to give you military retirement. [00:19:51] Speaker 05: If it's less than that, they're going to give you a small check and then they're going to say goodbye here. [00:19:55] Speaker 05: So any of that contributing stuff, as long as it's listed as a condition by the PEB as an unfitting condition, it has been deemed a condition that is unfitting, that is either independently unfitting or contributing to unfitting. [00:20:11] Speaker 05: Now there's not an explanation in the PE's decision of whether something's just independently on its own. [00:20:16] Speaker 05: or contributing. [00:20:18] Speaker 05: Again, I don't think we need to make that distinction because the governing regulation says all you have to do is contribute. [00:20:22] Speaker 05: But if this court were to buy the government's argument here, contrary to the army regulation, that it has to be substantially unfitting or separately contributing to unfitness here, I think we still meet that standard. [00:20:36] Speaker 01: Was this regulation adopted before or after the Wounded Warrior Act? [00:20:41] Speaker 05: Army Relations 635-40, I believe was after the Warned Warrior Act or as part of the Warned Warrior Act, but we can verify that, Your Honor. [00:20:50] Speaker 01: Okay, that would be helpful to know. [00:20:54] Speaker 06: Thank you. [00:20:54] Speaker 06: Council, unless my colleagues have further questions at this point, we'll hear from the government and we'll give you a little time for rebuttal. [00:21:06] Speaker 08: Thank you. [00:21:07] Speaker 08: Mr. Janda. [00:21:08] Speaker 08: Thank you, Your Honor, and may it please the Court, Sean Janda for the Secretary of the Army. [00:21:12] Speaker 08: I'd like to start with where you started Judge Walker, which is what the board actually said. [00:21:17] Speaker 08: I think if you look at JA 79, the board makes a very clear factual determination that the leg condition in the board's judgment would have no impact on the unfitness of Mr. Sissel. [00:21:30] Speaker 08: So I think that's the factual determination that the board eventually reached. [00:21:34] Speaker 08: And I agree with your honor, well, I would suggest, your honor, that the underlying PEB decision is a little inscrutable about sort of how much each of the two conditions in the PEB's view contributed or contributed at all to the unfitness. [00:21:50] Speaker 07: On JA 79, I see where it says, I guess we can, [00:21:59] Speaker 06: I think the relevant sentences are in the district court's opinion. [00:22:05] Speaker 06: So I don't think that these sentences are sealed because they're quoted in your brief. [00:22:13] Speaker 07: Well, so I don't know whether that paragraph is, the paragraph begins with the word panel members. [00:22:22] Speaker 07: Is that talking about the VA panel? [00:22:25] Speaker 07: Who are the panel members? [00:22:26] Speaker 08: My understanding is the panel members are the members of the board. [00:22:29] Speaker 08: The numbers of the PDP are of the board that's talking. [00:22:34] Speaker 07: It's right. [00:22:37] Speaker 07: It's like we believe in the third person. [00:22:39] Speaker 07: Correct. [00:22:40] Speaker 08: So I think that reflects the board. [00:22:42] Speaker 07: Just more generally, like I've got that paragraph circle that kind of helps you got paragraph, you know, earlier that kind of, I think supports the different reading that Mr. Sissle's attorney endorsed. [00:22:59] Speaker 07: What do I do if the decision contradicts itself? [00:23:07] Speaker 08: So I don't think the decision contradicts itself, Your Honor. [00:23:09] Speaker 08: If there's specific language that you want me to address, I'd be happy to. [00:23:12] Speaker 07: I think what the board says at the beginning is... It does refer to a constellation of conditions that was unfitting. [00:23:18] Speaker 07: That's in the first paragraph under the analysis summary. [00:23:23] Speaker 08: Right, so I think what it's saying or what the board is saying is that they understand the PEP's underlying decision as just sort of saying this individual is unfit without sort of separately thinking about the back, the contribution of the back and the contribution of the leg. [00:23:39] Speaker 08: But in the PDBR's judgment, the medical records do not support the finding that the leg itself had any impact on unfitness when disaggregated from the back. [00:23:52] Speaker 06: So the sentence that you're focused on, on the no impact, it's followed by a sentence that speaks of the leg condition would not have on its own caused him to be found unfit. [00:24:06] Speaker 06: And the on its own, even under your understanding of it, isn't enough, right? [00:24:11] Speaker 06: Because even if it wasn't on its own enough, there's still the question of whether it contributed to. [00:24:16] Speaker 08: Right, so I think then when you go to the sentence after that, I think then the board makes clear that really it's finding that there's no impact. [00:24:23] Speaker 08: And I think the board was sort of separately thinking about the question whether the condition is unfitting on its own and then the separate question about whether it contributed to unfitness in some material way. [00:24:34] Speaker 08: And I read that paragraph saying that certainly not unfitting on its own and we think no impact on unfitness at all. [00:24:40] Speaker 06: Well, so another way to read it is to say that [00:24:43] Speaker 06: When we're talking about no impact, what we mean is no impact of a kind that would on its own render somebody unfit. [00:24:49] Speaker 06: And that, by your own estimation, I know you're going to disagree with that and say that's not what they did. [00:24:54] Speaker 06: But if that is what they did, then that wouldn't have been enough because you still have to get to the contribute to part under the way you think about it, right? [00:25:00] Speaker 06: There still has to be an assessment of whether even if the light condition on its own didn't render [00:25:08] Speaker 06: unfitness didn't result in unfitness. [00:25:10] Speaker 08: It could have contributed to unfitness. [00:25:12] Speaker 08: Yes, but I think and I do think the board decision is clear that it didn't think there was any impact. [00:25:16] Speaker 08: I think Dr. Kibble's decision and then ultimately the final decision adopting. [00:25:20] Speaker 06: So here's my question about any impact and how that assimilates into contribute to. [00:25:27] Speaker 06: So the reg speaks in terms of [00:25:33] Speaker 06: in itself is unfitting or contributes to the unfitting condition. [00:25:37] Speaker 06: So it just says contributes to. [00:25:39] Speaker 06: Your brief speaks in terms of substantially contributes to. [00:25:43] Speaker 06: So what if somebody says, well, I think the leg condition might have contributed to it, but I don't know that it's substantially contributed to it. [00:25:50] Speaker 06: Just as a matter of law, that seems like that doesn't work here because all that the regulation requires, even if we disregard what exactly contributes to mean, the regulation speaks in terms of contributes to, not substantially contributes to. [00:26:04] Speaker 08: So let me say a couple things, Your Honor. [00:26:05] Speaker 08: First, I don't think the Court needs to key in on that distinction because the Board decision finds no impact at all, and so that will be enough to resolve the case. [00:26:13] Speaker 08: To the extent that the Court is inclined to key in on that distinction, though, my understanding is that the Board and the Secretary do view the statute and the regulation as requiring a substantial or significant contribution, not just any iodo-contribution. [00:26:27] Speaker 08: And I think there's a couple of justifications for that. [00:26:30] Speaker 08: I mean, one is I think it's inherent to some degree in the language of 1216A says sort of render unfit. [00:26:38] Speaker 08: The regulation says contribute to unfitness. [00:26:39] Speaker 08: And I think there's a sort of materiality or substantiality condition built in. [00:26:44] Speaker 08: And if there's any question about it, I think the VA rating scale and the way it operates further supports this substantiality contribution because the VA rating scale operates in 10% increments. [00:26:56] Speaker 08: So the minimum rating above 0% is 10%, which I think definitely connotes some degree of substantial contribution to unfitness. [00:27:03] Speaker 08: The board can't say we're going to rate the condition because it contributes one iota to unfitness. [00:27:09] Speaker 07: I keep saying iota, though, but imagine a spectrum. [00:27:12] Speaker 07: No impact. [00:27:13] Speaker 07: de minimis impact. [00:27:17] Speaker 07: Impact, substantial impact. [00:27:20] Speaker 07: I think there's a gap between de minimis impact and substantial impact. [00:27:25] Speaker 07: And if we are in that gap, [00:27:27] Speaker 07: Doesn't that count? [00:27:30] Speaker 08: So, I don't think we're in that gap and I don't think the board thought we were in that gap and I think the board's factual determination on this is more than supported by the record. [00:27:39] Speaker 08: But as I said, I mean, I think even a 10% rating is a substantial rating or reflects a substantial impact. [00:27:45] Speaker 08: And so the extent that that's the minimum rating that can be given above 0%, I think that just incorporates some notion that there really is, there really has to be. [00:27:54] Speaker 06: How do I know that 10% is, that the board and the secretary ultimately, which is what we're reviewing, would have thought that 10% is a substantial impact and not just an impact, but something that falls short of substantial. [00:28:08] Speaker 06: There's nothing, all I have is a regulation that says, it doesn't use the word substantial, it just says contributes to. [00:28:15] Speaker 06: And so, I mean, you could say, well, it contributes to mean substantial contribution, but it just doesn't say that. [00:28:20] Speaker 06: And then the brief says substantial, the decisional document says something like that. [00:28:26] Speaker 06: It has a modifier to contribute. [00:28:28] Speaker 06: So how do I know that somebody's not seeing a distinction there between contribution and what you're calling a substantial contribution that matters? [00:28:39] Speaker 08: So just to be clear about this, I think this is important. [00:28:40] Speaker 08: The board decision says no impact. [00:28:42] Speaker 08: But that's sort of the paragraph we were discussing earlier. [00:28:45] Speaker 08: And so I don't think the court needs to get into this. [00:28:47] Speaker 08: That being said, I think just some notion of significance or substantiality is, as I said, built into the idea in the statute of actually rendering the person unfit, or of really meaningfully contributing to that unfitness. [00:29:00] Speaker 08: And to the extent that there's any doubt, and I think the other thing to keep in mind is that the regulation that's being quoted is a regulation that governs the physical evaluation board proceedings. [00:29:10] Speaker 08: And so the PDBR, as we explained in our brief, is itself exercising some degree of pretty substantial discretion that's not constrained by the statute to determine when there's a regulation that governs the PDBR and it says it reviews the accuracy and fairness of the underlying ratings. [00:29:26] Speaker 08: And so I think it would be perfectly fine for the PDBR to say, you know, the way that we understand the statute and this test and sort of supported by the VA ratings, [00:29:35] Speaker 08: is that we think there needs to be a real substantial contribution for us to overturn. [00:29:38] Speaker 06: That might be perfectly fine, but I just don't see where anyone's done that. [00:29:41] Speaker 06: It just, the regulation says contribute. [00:29:44] Speaker 06: It doesn't say anything beyond contribute. [00:29:46] Speaker 06: And put aside the no impact argument, the point for a second. [00:29:48] Speaker 06: I've got that point, but just put that to one side for a second. [00:29:52] Speaker 06: The regulation just says contribute. [00:29:54] Speaker 06: And then the language in the brief and in the decisional document has something more than just contribute. [00:29:59] Speaker 06: It just says something more than that. [00:30:01] Speaker 06: And it might well be totally fine to say the way we re-contribute is substantially contributing. [00:30:06] Speaker 06: What we mean by substantially contribute is we're assimilating it to the 10% increments and therefore that's the level of substantiality that we're talking about. [00:30:14] Speaker 06: But I just don't have anything like that to look to. [00:30:17] Speaker 08: So my understanding, Your Honor, is that that's how the Army and the Board understand the regulation. [00:30:21] Speaker 08: I mean, I don't read anything in the record from Mr. Sissel as keying in on that distinction, and so I don't think the Board felt the need to sort of justify from first principles the standard that it understands to apply in this context. [00:30:35] Speaker 08: I think if [00:30:36] Speaker 08: Mr. Sizzlehead in front of the board said, you know, anything that contributes even a little bit or that sort of contributes more than a de minimis amount has to be rated. [00:30:44] Speaker 08: Maybe the board would have had the opportunity to explain exactly why it reads. [00:30:50] Speaker 06: Then how do you understand substantiality to work? [00:30:54] Speaker 06: What does more than de minimis mean? [00:30:55] Speaker 06: Because I think you understand substantiality to mean something more than de minimis, is that right? [00:30:59] Speaker 08: Certainly, I think substantial is more than de minimis. [00:31:02] Speaker 08: I mean, whether there's sort of some intervening space between de minimis and substantiality, I'm not sure. [00:31:08] Speaker 08: But I think the way the board understands it is just that there really has to be some tangible material, substantial contribution. [00:31:16] Speaker 06: And again, maybe in a different case. [00:31:18] Speaker 06: Would that be enough? [00:31:20] Speaker 06: So if it takes it from 55, it's 55, you're already there. [00:31:23] Speaker 06: The other condition already independently does it. [00:31:26] Speaker 06: And this takes it from 55 to 75, that you're even more unfit and it adds on. [00:31:35] Speaker 06: Would you say that's substantial material? [00:31:37] Speaker 06: Would you say it's not because you're already there? [00:31:39] Speaker 06: No. [00:31:39] Speaker 08: So if you have one condition that independently renders you unfit and a different condition that really substantially contributes to that unfitness or makes it substantially worse or more unfit, my understanding is the board would rate that condition separately and would consider that to fall within. [00:31:55] Speaker 08: You also have a circumstance where you have two conditions, neither of which independently would render you unfit, but both of which are taken together, each substantially contribute to an overall finding of unfitness. [00:32:08] Speaker 02: But I think- Sorry. [00:32:11] Speaker 08: Go ahead. [00:32:11] Speaker 02: This is on- So are you saying that if you're there at 51%, one condition puts you at 51% over, 51% makes you unfit. [00:32:25] Speaker 02: And another one so exacerbates everything that we are now ready to say that you are 75 or 80% unfit, which is less than 50%, but it's a very material increase. [00:32:41] Speaker 02: The Disability Review Board had to factor that second exacerbating condition into its disability rating. [00:32:52] Speaker 08: Yes, that is our understanding. [00:32:57] Speaker 08: It's a little bit weird because the board wouldn't review anything where there was a more than 20% rating originally, so you're not talking about the space. [00:33:04] Speaker 08: But I think our understanding, the board's understanding, is that anything that substantially contributes, even if a different condition independently renders you unfit, if there's a substantial exacerbation or contribution to that unfitness by a second condition. [00:33:17] Speaker 02: I mean, you're already unfit. [00:33:18] Speaker 02: It's not contributing to [00:33:20] Speaker 02: do you pass the definition of unfit, but it sure does make you more unfit. [00:33:24] Speaker 02: And so we talk about unfitness, it's not just an on or off switch, it's a how unfit are you. [00:33:31] Speaker 02: It's are you unfit, and if so, how unfit are you? [00:33:34] Speaker 08: Right. [00:33:34] Speaker 08: So I think, well, there's the threshold question of whether a particular condition either renders you unfit or substantially contributes to unfitness. [00:33:41] Speaker 08: And that's kind of the threshold binary question with respect to each condition. [00:33:45] Speaker 08: And then there's the rating question. [00:33:47] Speaker 08: But the only conditions that are rated are those that contribute in some [00:33:51] Speaker 08: meaningful, substantial, significant, whatever adjective you want to use, way to your unfitness. [00:33:58] Speaker 08: And so here, I read the board's decision, it said to find no impact at all, but I think even if it were something more than no impact, the evidence in the record sort of amplifies the determination that there's not any meaningful or substantial contribution to the unfitness from the late condition. [00:34:14] Speaker 06: As divorced from the back condition, which so if I could just stick on the example using the zero to 100 scale that we've been talking about so for over 50 with one condition the back condition let's say get you over 50 by itself and then what the leg condition does is take you from 50 to 65 and Let's just say that the 15 increment is something that the board would consider to be substantial and [00:34:39] Speaker 06: What you're saying is 51 to 66, just to make sure we're over 50, 51 to 66 would mean that the light condition has to be rated because the 15 increment is substantial. [00:34:52] Speaker 06: But 51 to 58 wouldn't. [00:34:56] Speaker 06: That does contribute to unfitness in the same way that the substantial contribution would in that it exacerbates [00:35:03] Speaker 06: the unfitness, but not enough that it has to be separately rated. [00:35:07] Speaker 06: Is that, am I understanding the... I think not precisely, Your Honor. [00:35:10] Speaker 08: Okay. [00:35:10] Speaker 08: Because I think that comes at it from the sort of wrong way, from the backwards way, which is that this unfitness determination is made outside the context of the VA rating determination. [00:35:20] Speaker 08: So the board doesn't say, you know, we would rate this [00:35:23] Speaker 08: And that's not enough, so we just round to zero. [00:35:28] Speaker 08: What the board says is sort of as a qualitative measure, to what extent does this contribute to our own fitness? [00:35:34] Speaker 08: And if it contributes in some significant or substantial way, then it gets rated. [00:35:38] Speaker 06: Okay, so I'm not, I don't mean, I'm sorry, I didn't mean for the 15 to be the percentage of the percentage rating at the end of the day. [00:35:46] Speaker 06: I see how that's confusing. [00:35:48] Speaker 06: What I'm saying is, just conceptually, there's a condition that by itself is enough to render you unfit. [00:35:54] Speaker 06: That is something that the board determines, right? [00:35:57] Speaker 06: Correct. [00:35:58] Speaker 06: And then there's another condition that exacerbates the unfitness. [00:36:02] Speaker 06: It wouldn't by itself render you unfit, but it exacerbates the unfitness that's already caused by the first condition, by condition A. And then with condition B, there is a determination, I think there has to be, [00:36:13] Speaker 06: that condition B exacerbates the first condition by enough to make it substantially a substantial contribution such that it has to be severely rated, or it exacerbates it but not by enough to make it a substantial contribution such that it wouldn't have to be rated. [00:36:32] Speaker 06: Am I understanding that? [00:36:33] Speaker 06: I think that is correct. [00:36:34] Speaker 06: Yes. [00:36:34] Speaker 08: There's just a qualitative determination about how much that second condition contributes to the overall sort of profile of unfitness. [00:36:41] Speaker 06: Okay, and so here, in this case, if we, your first submission is, don't even worry about any of that, because the PEB said, the PDBR said no impact, and so we're not even talking about any contribution at all. [00:36:56] Speaker 06: Now, if I, by hypothesis, you're going to resist this, but just accept it for purposes of argument, if I don't find that completely dispositive, and then I'm in the land of, okay, then I need to think about the contribution part of this, [00:37:09] Speaker 06: then am I right in thinking there's nothing that tells me whether the leg condition, that helps me understand why the leg condition might have contributed but not have contributed enough to get me to substantial contribution. [00:37:25] Speaker 06: And there's no explanation somewhere in any manual that [00:37:33] Speaker 06: elaborates on the regulation or anything that tells me how to understand substantiality. [00:37:37] Speaker 06: Right. [00:37:37] Speaker 06: I mean, I think it's certainly a qualitative standard. [00:37:39] Speaker 08: It's not a quantitative standard or anything like that. [00:37:42] Speaker 08: I think both the board decision and Dr. Kibble's analysis go through in pretty significant detail why, in both of their views, the light condition would be great to say no impact. [00:37:53] Speaker 08: would have a very minimal impact. [00:37:56] Speaker 08: And I think there's sort of two separate things there. [00:37:59] Speaker 08: I mean, one is if you look at the medical records themselves, as Dr. Kibble says, they sort of generally show a sort of mild or intermittent weakness. [00:38:09] Speaker 08: Sometimes it doesn't show up at all. [00:38:11] Speaker 08: In medical records, when it does show up, it tends to be rated relatively close to normal or on the verge of normal. [00:38:16] Speaker 08: And then the other thing is the performance-based evidence that nothing in the commander's statement, I think, sort of explicitly links any of the limitations to the like condition. [00:38:26] Speaker 08: And the profile, the restriction, which was issued two days after the commander's statement, only lists the back condition and sort of has similar restrictions as those in the commander's statement. [00:38:36] Speaker 08: which I think because only this, the back condition seems to be at least implicitly tying to the back condition rather than the north condition. [00:38:42] Speaker 08: And so I think taking those two things together, both the board and Dr. Kibble evaluating this record, it determined that there really was not enough of an impact to warrant a separate rating. [00:38:54] Speaker 07: The PEB is quite short and what is in there is back and leg. [00:39:04] Speaker 07: Do you think that the PDBR was disagreeing with the PEB? [00:39:09] Speaker 08: I don't think so, Your Honor. [00:39:10] Speaker 08: I think what the PDBR and what Dr. Kibble sort of say is that the fact that the PEB didn't separately list the conditions. [00:39:19] Speaker 08: I mean, if you look at the PEB rating, it sort of says back and leg and just list them together as one condition. [00:39:24] Speaker 08: It reflects what was probably the PEB's judgment at the time, that the leg condition was not sufficiently unfitting to warrant a separate rating. [00:39:34] Speaker 08: And I think it's a very short narrative summary, I agree with that, but the sort of summary of the back and leg condition in the PEB [00:39:41] Speaker 08: finding sort of notes the five out of five strength in the leg says there's some weakness. [00:39:48] Speaker 08: I think the best reading of that in the way the board read that in the way that Dr. Kibble read that, it is altogether evincing a judgment that the leg condition was not sufficiently unfitting to warrant a rating. [00:39:58] Speaker 07: Did I hear Mr. Sissel's attorney to say that if that's what the PEB was doing, there's no reg that says they have to list the leg as specifically [00:40:11] Speaker 07: So I think you did hear that. [00:40:15] Speaker 08: I heard that. [00:40:16] Speaker 08: I'm not sure what the regulation is. [00:40:18] Speaker 08: That being said, I mean, I think here the point is that they actually didn't list it as two separate conditions. [00:40:23] Speaker 06: It's the one that requires the annotation on DA form DA 199, isn't that? [00:40:30] Speaker 02: Yeah. [00:40:31] Speaker 02: I think they refer to 635. [00:40:33] Speaker 02: Well, I don't know how they do these numbers. [00:40:35] Speaker 02: I have it as 3-5, where it says [00:40:41] Speaker 02: Only unfitting condition will be considered in the rated capacity. [00:40:46] Speaker 02: Any non-ratable defects or conditions will be listed in item 8 of DA form 199, but will be annotated as non-ratable. [00:40:57] Speaker 08: I think if you look at the form 199 here, which is JA 173, that's where the PEB doesn't break them out and say we're rating both of these. [00:41:07] Speaker 02: It does not list the leg in item 8 as non-ratable. [00:41:13] Speaker 02: In fact, it wraps the leg in the back together as the basis for its rating. [00:41:18] Speaker 02: But then you want to say that what the disability board here did was [00:41:24] Speaker 02: take it out and decide that the right leg was in fact non-radable. [00:41:30] Speaker 08: Right, so I think what the disability board understood this to be convincing was a judgment that the leg was not separately readable because it's not rated separately, it's not broken out into its own condition. [00:41:43] Speaker 08: But that's not how... But then it didn't have to be listed? [00:41:45] Speaker 02: Right, the Army regulations are quite specific. [00:41:48] Speaker 02: You look at everything and if you're looking at something you come across something that's there [00:41:55] Speaker 02: It's there, right? [00:41:57] Speaker 02: They've got TMJ or something. [00:42:02] Speaker 02: But that's not making them, affecting their own fitness in any way. [00:42:06] Speaker 02: That's not rateable for them. [00:42:07] Speaker 02: You've got it. [00:42:09] Speaker 02: But it doesn't make you, it doesn't bear on your rateability for unfitness. [00:42:13] Speaker 02: Then you have to list it as non-rateable. [00:42:17] Speaker 02: And they just definitely did not do that with the leg. [00:42:20] Speaker 08: So I think, again, had they thought it was warning its own separate rating, they would have listed it and rated it separately. [00:42:27] Speaker 08: I mean, the fact that they subsumed them together and didn't annotate the back and legs separately. [00:42:31] Speaker 08: I mean, maybe the answer is that they sort of failed to entirely properly follow the regulation in 2005. [00:42:36] Speaker 08: But I don't think there's anything. [00:42:38] Speaker 02: Or maybe they followed the regulation and considered unfitting conditions that contribute to unfitness [00:42:46] Speaker 02: All conditions that contribute to unfitness. [00:42:48] Speaker 02: All right, these things. [00:42:52] Speaker 02: Here's what contributes to unfitness here, back and leg. [00:42:56] Speaker 08: So I think, again, the board and Dr. Kibble said their understanding of the practice at the time. [00:43:02] Speaker 08: And I think you're reading, and I could be wrong, but I think you're reading from the 2017 635-40, which was not in effect at the time. [00:43:08] Speaker 08: There was a 1990. [00:43:10] Speaker 06: army right six thirty five dash forty and that's not something that i have and i'm not sure what that's what i think the nineteen ninety does have the same thing where sent same sentence that says just to make sure i'm talking about the same thing any non-radable defects or conditions will be listed in item eight of the a four ninety one ninety nine but will be annotated as non-radable that's the relevant right sentence i believe it's in the nineteen ninety one as well so i think that i think the answer there [00:43:35] Speaker 08: If the board thought they were both unfitting, they should have raided both of them. [00:43:40] Speaker 08: Maybe the board should have... [00:43:41] Speaker 08: Annotated the one is not unfitting if that's what it thought and maybe the board didn't sort of precisely follow the regulations in 2005. [00:43:48] Speaker 08: I mean, Mr. Sissel sort of ultimately acquiesced in the board's judgment or in the board's decision you could have requested a formal hearing if you thought that was a problem and you didn't. [00:43:57] Speaker 02: No, they listed, it wasn't that they left it out. [00:44:00] Speaker 02: They listed it over on the rateable side. [00:44:02] Speaker 02: I don't know why you keep saying the medical board did something wrong. [00:44:05] Speaker 02: The medical board looked at things that contribute to unfitting. [00:44:09] Speaker 02: And listed these, I don't know how you can say that they made a mistake by not listing it as non-rateable when they specifically found it to be rateable and unfitting. [00:44:19] Speaker 02: I don't understand this argument that the PAB is the one that made the mistake or the MEB is the one that made the mistake. [00:44:27] Speaker 02: What I'm asking is why the disability board didn't make a mistake by taking that thing that was determined to be rateable when considered at least factors [00:44:37] Speaker 02: that contribute to unfitting and putting it over in the no effect at all column. [00:44:43] Speaker 08: Right, so the MEB in 2005 listed them separately as two separate conditions. [00:44:47] Speaker 02: The PEB- I'm looking at the form, okay, the DA199, that's what I'm talking about. [00:44:52] Speaker 02: That's what the regulation is talking about, JA104. [00:44:55] Speaker 08: That's only the PEB, right? [00:44:56] Speaker 08: Correct, yeah. [00:44:57] Speaker 08: Right, right. [00:44:57] Speaker 08: And so rather than listing them separately, [00:45:01] Speaker 08: in the way that the MEB did, where the MEB said there are two conditions here, we have the back, we have the leg, we're listing them separately. [00:45:06] Speaker 08: The PEB smushed them together. [00:45:10] Speaker 08: I mean, I think as I read the board's decision, as I read Dr. Kibble's decision or analysis, their understanding is that the board would do this or what this reflects is that the board's judgment that the back condition and the leg condition should not be separately broken out and the leg should not be rated separately. [00:45:26] Speaker 08: I mean, it's, again, it's one paragraph on the form. [00:45:30] Speaker 08: I agree with you, or I would suggest it's insuitable in some ways. [00:45:34] Speaker 08: I think the PDBR now is trying to reconstruct what happened 18 years ago from these medical records. [00:45:42] Speaker 08: And how they understand what the PEP did is that the PEP did not find the leg to be separately [00:45:48] Speaker 07: Contributing in some substantial way to the unfitness is there is there a difference between a condition and a symptom of a condition so you might have a back condition and then [00:46:00] Speaker 07: It causes pain in your leg, so then the leg pain is a symptom of the back condition. [00:46:08] Speaker 07: Am I thinking about that correctly, or would we just say, no, you have a back condition, you have a leg condition? [00:46:15] Speaker 08: So I think it is true that there could be a symptom and condition, and those could be separate things. [00:46:20] Speaker 08: And maybe the case from medical records here, that the leg pain is connected in some way to the back condition. [00:46:27] Speaker 08: I'm not a doctor, I'm not sure that that's what the records are saying, but I think that may be one reasonable interpretation of it. [00:46:32] Speaker 08: But I think what the VA rating schedule actually does make clear, what Mr. Sissel says it makes clear, and we agree, is that these really do have to be considered separately. [00:46:42] Speaker 08: And so I think the leg condition for these purposes has to be disaggregated, or the symptoms in the leg have to be disaggregated. [00:46:50] Speaker 08: And there has to be that threshold, readability determination made. [00:46:54] Speaker 08: I think the board and Dr. Kibble make quite clear that when you look at the records as a whole, and I don't think the PEB made this determination. [00:47:01] Speaker 08: I don't think the PEB may not have been thinking about sort of exactly this question. [00:47:07] Speaker 08: But I think the board and Dr. Kibble both [00:47:09] Speaker 08: reviewed the records in pretty substantial depth and came to the conclusion that those records did not support a finding that the lay condition when disaggregated from the back condition contributed in some substantial way that we think at all to the unfitness determination. [00:47:23] Speaker 07: I mean, that's the case that I think you are kind of hanging your hat on with a P.E.B. [00:47:27] Speaker 07: just kind of made a clerical mistake. [00:47:32] Speaker 08: I mean, maybe it's a clerical mistake. [00:47:34] Speaker 08: I mean, maybe it's [00:47:36] Speaker 08: They saw the back and the leg as interrelated, and so sort of put them together in that way. [00:47:41] Speaker 08: I mean, again, it's sort of 20 years ago, and we have one paragraph on the form, and it's a little bit hard to reconstruct, I think, exactly what the PEB was thinking. [00:47:52] Speaker 07: But before- It might be a reason, though, to read into the PDBR and Dr. Kibble's opinions. [00:48:04] Speaker 07: and understanding that they thought of the leg as contributing to the condition. [00:48:19] Speaker 08: The unfitness. [00:48:20] Speaker 08: I mean, I think the PDBR and Dr. Kribble did not think the leg contributed to the unfitness. [00:48:24] Speaker 08: I mean, I think they are quite clear about that. [00:48:25] Speaker 08: Well, I mean, you've got that no impact. [00:48:28] Speaker 08: I mean, no impact does no impact. [00:48:31] Speaker 08: Like, I agree it's a relatively short decision, and at times they talk about the substantial contribution standard, which is the standard that they use. [00:48:39] Speaker 08: But I think the ultimate finding there is very, very clear, and is well supported by the record. [00:48:47] Speaker 08: And even if it were a little bit of an impact, again, we think the board's substantial contribution standard makes perfect sense. [00:48:52] Speaker 02: On your no impact, [00:48:54] Speaker 02: We have to have a sense of what they consider a relevant impact. [00:48:59] Speaker 02: And on JA 80, which is sealed, so I don't, I can't remember if this was in the district court opinion or not, but the, if you can turn to that, the last paragraph before the board finding section. [00:49:20] Speaker 02: Lines five to six. [00:49:23] Speaker 02: say there was no documentation of, and then use a two word phrase, which would provide for a higher rating under the formula. [00:49:35] Speaker 02: Is that two word phrase, I don't know if it's public if I can say it, but if it's not, is that what they mean by no impact? [00:49:45] Speaker 08: I don't think so your honor, I think this, [00:49:48] Speaker 02: This is the rehearing. [00:49:52] Speaker 08: So I read the final paragraph. [00:49:53] Speaker 02: It's a pretty dramatic view of no impact. [00:49:56] Speaker 08: So I read the final paragraph that's talking about why they thought 20 percent for the back, but no higher than 20 percent when thinking about the back. [00:50:05] Speaker 08: was the appropriate rating? [00:50:09] Speaker 08: Which the topic sentence of that paragraph I think turns away from thinking about the leg to thinking about the back. [00:50:15] Speaker 08: And so there obviously is 20% impact from the back. [00:50:19] Speaker 08: I think what they are. [00:50:20] Speaker 02: But the sentence before that is talking about the individual may have suffered and then describes it. [00:50:31] Speaker 02: And that's the leg argument. [00:50:36] Speaker 02: So I read that as being... So I had read that as, because the leg thing did not meet this standard here. [00:50:44] Speaker 08: So I read that as being about the back condition, sort of narrowly focused on the back condition. [00:50:53] Speaker 02: Even though it's led into by the complaints about the leg condition. [00:50:56] Speaker 08: So I don't think it, I mean... Which is then subsumed under... So I think there's a separate question about pain [00:51:05] Speaker 08: in the area of the back. [00:51:08] Speaker 08: Which is why I read this. [00:51:09] Speaker 08: This whole paragraph is about the back. [00:51:11] Speaker 08: This paragraph is about the back. [00:51:13] Speaker 08: And the leg I think is disposed of. [00:51:18] Speaker 02: He was complaining about leg pain. [00:51:22] Speaker 02: Yes. [00:51:23] Speaker 02: Did he complain about back pain? [00:51:25] Speaker 08: There is evidence in the record of pain tenderness. [00:51:30] Speaker 02: Before the board, did he complain about [00:51:33] Speaker 02: The rating be affected by back pain or leg pain. [00:51:37] Speaker 08: So I'm not sure. [00:51:38] Speaker 08: I mean, I think. [00:51:41] Speaker 08: Before the board, he was arguing about the back rating should be increased and that the leg should be separately rated. [00:51:45] Speaker 08: I'm not. [00:51:48] Speaker 08: To be honest, I haven't focused the time attention. [00:51:49] Speaker 02: One of the reasons the leg should be separately rated is because of. [00:51:53] Speaker 02: leg pain, which ties to that pain. [00:51:57] Speaker 08: I don't think leg pain necessarily. [00:52:01] Speaker 08: I think that's, it's up a little bit in the blue brief and the reply brief here. [00:52:05] Speaker 08: I think the leg condition as presented to the board and as documented in medical records is more about sort of weakness, numbness. [00:52:13] Speaker 02: Weakness and numbness. [00:52:14] Speaker 02: Numbness is the antithesis of pain. [00:52:16] Speaker 08: Right. [00:52:17] Speaker 08: But I think, I mean- Weakness is not pain. [00:52:21] Speaker 08: Right. [00:52:22] Speaker 02: And- Nerve pain is pain. [00:52:24] Speaker 08: Right. [00:52:25] Speaker 08: And I think the medical records, as you said, and I think what the board was considering and what he asked the board to consider in the leg was focused on the weakness and the numbness. [00:52:32] Speaker 08: And there might be a separate question about leg pain. [00:52:36] Speaker 08: I think it comes up a little bit in the reply brief. [00:52:38] Speaker 08: I don't think it was really before the board sort of pain as disaggregated from weakness or numbness in the area of the leg. [00:52:46] Speaker 06: Make sure my colleagues don't have additional questions for you guys. [00:52:50] Speaker 06: Thank you, counsel. [00:52:57] Speaker 06: Mr. Hyde, we'll give you three minutes for rebuttal. [00:53:00] Speaker 06: Thank you, Your Honor. [00:53:01] Speaker 05: Just three hopefully relatively quick points here. [00:53:05] Speaker 05: I want to address the primary argument that the government made here, which is the statement by the PDBR that there was no performance-based evidence that the right leg condition impaired his duty performance at the time of separation here. [00:53:19] Speaker 05: That seems to be what they're hanging their hat on to say that didn't even contribute here. [00:53:23] Speaker 05: As we pointed out in our briefs here, that is just not supported by substantial evidence. [00:53:27] Speaker 05: The district court even recognized that the board's statement that Mr. Sisso's leg injury did not impair his fitness to duty appears to contradict the PED's finding that his right leg condition [00:53:38] Speaker 05: rendered him unfit. [00:53:40] Speaker 05: It's also contradicted by the MEB's finding that his right leg condition was separately unfitting, was separately not meeting retention standards here. [00:53:50] Speaker 05: If you take a look at the actual record here, they just say nothing in the record supports that it contributes here. [00:53:56] Speaker 05: But every single evaluation in his record included either an explicit diagnosis of his right leg condition, the hypothesia and or pain, or functional limitations that both the MEB and the PEB associated with both the back and the leg. [00:54:10] Speaker 05: Functional locations against running, against stooping, against walking. [00:54:14] Speaker 05: Now the government and the PDBR seizes on the fact that the last VA rating showed that he had normal right leg strength and gait. [00:54:22] Speaker 05: It's kind of what they hang their hat on to say no matter all this other evidence that we've seen, no matter the PEB's evaluation, the MEB's evaluation, [00:54:30] Speaker 05: No matter all the functional limitations, we're going to dispel all of that because normal right leg strength and gait. [00:54:36] Speaker 05: But normal right leg strength and gait is not the end all be all on whether something's going to affect you. [00:54:40] Speaker 05: If it hurts your leg to walk more than two miles, it's still going to be there, even if you could raise your leg during a fitness test for a minute. [00:54:48] Speaker 05: If you can't do a repetitive exercise because you can't feel it and you can't do it, that's still going to impact your ability here. [00:54:54] Speaker 05: Every single portion of the evaluation, every evaluation, the commander's profile, everything they seize on as not evidencing that the right leg condition rendered him unfit actually evidences the opposite. [00:55:09] Speaker 05: It shows specific things that can absolutely and should be absolutely attributed to the right leg condition. [00:55:15] Speaker 07: So, I mean, I follow that. [00:55:18] Speaker 07: That seems like a much heavier lift for you. [00:55:24] Speaker 07: To ask us to take a look at basically a doctor's reports conclusion and say like we three non doctors think that that doctor's reports conclusion got it wrong. [00:55:39] Speaker 07: When especially seems like an unnecessarily heavy lift when. [00:55:43] Speaker 07: I think multiple times today a theory has been floated that maybe they actually were saying that the leg contributes to the unfitness, in which case the law kicks in, and then we're on a little more solid ground, at least relative to the doctor's expertise about the law, and say, oh, the law says if it contributes to unfitness, the law says it has to be rated. [00:56:12] Speaker 07: Why wouldn't you? [00:56:14] Speaker 07: hit that one. [00:56:16] Speaker 05: First, I would say I just wanted to directly address that one statement, the PDBR, that it just didn't impact. [00:56:22] Speaker 05: Your Honor, I think that that's just unsupported by the record evidence with all the plethora of evidence that is supported. [00:56:28] Speaker 05: I do agree, however, that both Dr. Kibble and the PDBR spends a lot of time talking about all the limitations that the right leg has in the record here, and that that does support that it at least contributes here. [00:56:41] Speaker 05: And so when you correctly apply the governing army regulation, [00:56:44] Speaker 05: In either way, Mr. Sissel's right leg condition should have been rateable, as it was listed as an unfitting condition by the PEB. [00:56:53] Speaker 05: I will say, however, that we're not asking you to take the heavy lift of getting in here as non-doctors and overriding a doctor. [00:57:00] Speaker 05: There's actually Dr. Kibble that overrode six other doctors before him, or before her, excuse me. [00:57:07] Speaker 05: The P.E.B. [00:57:07] Speaker 05: doctors, the M.E.B. [00:57:08] Speaker 05: doctors, the neurosurgeons went through, they're the ones that diagnosed Mr. Sizzle's right leg. [00:57:13] Speaker 05: They're the ones that put forth their medical opinion that his right leg separately failed to meet retention standards. [00:57:21] Speaker 05: Military doctors came through and determined that his right leg was separately unfitting here. [00:57:27] Speaker 06: Can I ask one last question, I think, and it just follows up on Judge Walker's question and your answer to it. [00:57:33] Speaker 06: If there's a theory under which [00:57:37] Speaker 06: the board operated on the premise that the leg condition did contribute. [00:57:44] Speaker 06: And I see that there's at least that possibility. [00:57:47] Speaker 06: How does that square with the statement? [00:57:50] Speaker 06: in the PDBR's decision that the leg condition had no impact on duty performance. [00:57:56] Speaker 05: I don't think it squares. [00:57:57] Speaker 05: I found that statement to be incredible. [00:58:00] Speaker 05: I think that that statement is just completely contradicted by the record. [00:58:03] Speaker 05: It's contradicted by even their own analysis of his prior conditions. [00:58:08] Speaker 05: They go through repeatedly and they say it's vague, the commander's statement's vague, about whether each of these functional limitations are assigned to the back of the leg. [00:58:15] Speaker 06: So the bottom line is then you think the decisional document is [00:58:19] Speaker 05: I think it's internally contradictory. [00:58:22] Speaker 05: I think it applies the wrong legal standard, and I think that it doesn't really explain why it's deviating from this significant contradictory evidence, Your Honor. [00:58:32] Speaker 02: Do we know that when they say no impact, that's the label that they mean as a factual matter, factual medical matter, there's zero impact, or that it means [00:58:43] Speaker 02: no rateable impact that is no substantial contribution. [00:58:47] Speaker 05: I think it's the latter, Your Honor, and it's what the Court sees done. [00:58:49] Speaker 02: So then the legal heir would inform that statement. [00:58:52] Speaker 02: Yes, Your Honor. [00:58:53] Speaker 02: That you argue is a legal heir. [00:58:55] Speaker 06: No impact that matters as a matter of law. [00:58:57] Speaker 05: Right, and I think that's where they're getting to. [00:58:59] Speaker 05: And the next sentence, I think, clarifies that, as I think Your Honor pointed out when the government was up here, that the next sentence is talking about the right-like condition would not have on its own [00:59:08] Speaker 05: the CEI to be referred to as unfitting here. [00:59:13] Speaker 05: And that's the analysis they were going through. [00:59:15] Speaker 05: And again, this is the last point I'll make here on this issue. [00:59:18] Speaker 05: My colleague at the government here keeps saying that his understanding is that the Army interprets their regulation as requiring a substantial unfitness [00:59:28] Speaker 05: or separately in fitness here. [00:59:31] Speaker 05: We have no army regulation or memorandum saying that's how it should be interpreted. [00:59:35] Speaker 05: There's no case that the government cited today or in their briefings or anywhere at any time interpreting that regulation to require some heightened standard of separately unfitting or not. [00:59:45] Speaker 05: In fact, the only case that has answered that question, McCord, [00:59:48] Speaker 05: which is federal claims in the case of neurodemic facts, explicitly rejected that interpretation and said that the plain language did not support that and it is irrelevant whether it's separately unfitting. [01:00:00] Speaker 06: Let me make sure my colleagues don't have additional questions for you. [01:00:04] Speaker 05: Thank you, Council. [01:00:05] Speaker 05: Thank you to both Councils. [01:00:06] Speaker 06: We'll take this case under submission.