[00:00:00] Speaker 03:
Before we begin this morning, I just want to extend on behalf of Judge Lurie and myself and the entire court, a warm welcome to our visiting judge this morning, Judge Gilstrap.

[00:00:11] Speaker 03:
I think he's known as the judge with the largest patent docket in the country.

[00:00:15] Speaker 03:
So we're very grateful that he has come this week to help us with our patent docket.

[00:00:20] Speaker 03:
So welcome to Judge Gilstrap.

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

[00:00:24] Speaker 03:
The first case this morning is 147084, Delisle v. McDonald.

[00:00:30] Speaker 03:
Mr. Reich, whenever you're ready.

[00:00:34] Speaker 01:
May it please the Court.

[00:00:36] Speaker 01:
The Board of Veterans Appeals and the Veterans Court interpreted Diagnostic Code 5257 as limited to the impairments of recurrent subluxation and lateral instability.

[00:00:46] Speaker 01:
This was a legal error that should be reviewed to know about.

[00:00:49] Speaker 03:
Yeah, but they also did something else, right?

[00:00:51] Speaker 03:
And they said, even if we're wrong about whether or not this open-ended or not, your client still got the benefit of consideration under the other applicable diagnostic codes.

[00:01:07] Speaker 03:
So that was their alternative holdings, I understand it.

[00:01:11] Speaker 03:
And I want to know why we even have to reach the legal issue, which you've correctly presented

[00:01:16] Speaker 01:
Yeah, I think that's a good question.

[00:01:18] Speaker 01:
And I think you have to take a look at what the court said.

[00:01:22] Speaker 01:
And this is at A4 to A5 in the veteran's court's opinion.

[00:01:26] Speaker 01:
And what they said in the alternative was that the veteran failed to identify any symptoms that would necessitate the use of a cash auto.

[00:01:36] Speaker 01:
But there's two things that I want to say about that.

[00:01:39] Speaker 01:
The first is if you look at that portion of the opinion from A4 to A5,

[00:01:43] Speaker 01:
There isn't a single site to the record.

[00:01:45] Speaker 01:
There isn't a single site to the board.

[00:01:48] Speaker 01:
And to the extent the Veterans Court was engaging in fact-finding in the first instance, that's exceeding its jurisdiction, which is improper.

[00:01:56] Speaker 03:
Well, that may be true if it were correct.

[00:02:00] Speaker 03:
But it seems to me, and I think the government points this out, that the board did make

[00:02:05] Speaker 03:
several findings that your client's symptoms were fully covered by the code other than 5257.

[00:02:13] Speaker 03:
Is that enough?

[00:02:16] Speaker 03:
OK?

[00:02:16] Speaker 01:
Well, I think if you're pointing to the argument at the bottom of A4 where the Veterans Court refers to Mitchell v. Shinseki and DeLuca v. Brown, and in that section they say that some of these enumerated impairments are inadequate,

[00:02:34] Speaker 01:
But if you look at the underlying cases, which the veteran court is referring to, if you look at Mitchell and if you look at DeLuca, those cases are specifically looking at diagnostic codes that refer to loss of motion.

[00:02:49] Speaker 01:
So for example, in the Mitchell case, the Mitchell case dealt with limitation of flexion.

[00:02:54] Speaker 01:
And the issue before Mitchell was whether or not pain should be considered

[00:03:01] Speaker 01:
in making a rating under the code for limitation of flexion.

[00:03:06] Speaker 01:
And what the Mitchell court held was that the court holds that pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range of motion loss.

[00:03:20] Speaker 01:
So Mitchell and also DeLuca, these were cases that were expressly evaluating disability based upon range of motion loss.

[00:03:30] Speaker 01:
i.e.

[00:03:30] Speaker 01:
flexion or extension.

[00:03:32] Speaker 01:
But 52-57 is not directed to range of motion loss.

[00:03:36] Speaker 01:
That's what 52-60 and 52-61 concern.

[00:03:40] Speaker 01:
52-57 is evaluating disability as a catch-all based on other things other than range of motion loss.

[00:03:47] Speaker 04:
But 52-57 isn't a catch-all.

[00:03:50] Speaker 04:
It refers only to recurrence of luxation or lateral instability, which throws us back to 5003.

[00:04:00] Speaker 01:
Well, 5257 doesn't refer just to those things.

[00:04:05] Speaker 01:
It says in the first line.

[00:04:06] Speaker 04:
That's all there is.

[00:04:07] Speaker 01:
Well, it does say knee impairments other.

[00:04:11] Speaker 01:
It is unique among all of the knee diagnostic codes in referring to other impairments.

[00:04:18] Speaker 01:
I think it's fair under a same language interpretation of 5257 that it is referring to other impairments of the knee.

[00:04:27] Speaker 01:
And I have a couple other points that I think buttress that finding.

[00:04:32] Speaker 01:
First of all, under Exxon B Hunt, you have to look at the whole regulation.

[00:04:38] Speaker 01:
And if you interpret 5257 as being limited specifically to recurrent subluxation and lateral instability, then you're reading the other impairment of entirely out of the regulation.

[00:04:50] Speaker 01:
It would be the same as if it weren't there.

[00:04:52] Speaker 01:
And that's improper.

[00:04:54] Speaker 04:
But why doesn't 5003 take care of it?

[00:04:58] Speaker 01:
Well, 5003 rates based on specific things.

[00:05:05] Speaker 01:
Under the terms of 5003, it rates based on limitation of selection or extension, where you look to 5260 or 5261, and if there's not sufficient

[00:05:17] Speaker 01:
limitation of flexion then you look at I believe x-ray evidence.

[00:05:21] Speaker 04:
The 5003 says when the limitation of motion is non-compensable under the appropriate diagnostic code then it's 10% which is what he got.

[00:05:37] Speaker 01:
But I believe it is based specifically on x-ray evidence, evidence of degeneration at that point.

[00:05:44] Speaker 01:
It's not based on the many other impairments

[00:05:47] Speaker 01:
that the veteran has, for example, the inability to walk more than short distances, the ability to climb stairs, weakness, fatigue ability.

[00:05:59] Speaker 01:
And the interpretation that we're putting forward is not just something that we've come up with.

[00:06:06] Speaker 01:
This is consistent with what the board has done in other instances.

[00:06:10] Speaker 01:
If you look at the DOE 1 and DOE 2 cases that were appended to our blue brief, in both of those cases,

[00:06:16] Speaker 01:
the board interpreted 5257 as a catch-all.

[00:06:20] Speaker 01:
They said so specifically, and they rated the veteran under 5257 even when there was no evidence of public safety.

[00:06:28] Speaker 02:
The board cases are clearly not binding on anyone, and not on us and on the Veterans Court, right?

[00:06:34] Speaker 01:
I would agree that the board cases are not binding, but this is a position endorsed by the VA, and it shows that there's unpredictability at the board level in the way that this

[00:06:44] Speaker 03:
fifty two fifty seven is being interpreted if you look into it fifty two fifty seven is you would like, I mean it seems a bit chaotic, I mean there's plenty of confusion as it exists between the diagnostic codes and what you're saying is the board, then the veterans support have the ability to just put anything in this with no differentiation in terms of severe, moderate and slight it's just an open-ended thing and people are just making it up as they go along

[00:07:14] Speaker 03:
in terms of what range ought to be assigned to some unknown symptom?

[00:07:21] Speaker 01:
Well, I mean, I guess there's a couple responses to that.

[00:07:23] Speaker 01:
I mean, the first one is that if you look, as it is already, with respect to whether something is moderate or severe or mild for recurrent subluxation or lateral instability, there's actually no guidance provided in terms of, well, if there's this much, then you get

[00:07:39] Speaker 01:
mild or if you get this much, then you get moderate.

[00:07:42] Speaker 01:
It's already up to medical professionals in the VA system who are making a determination in terms of what the appropriate rating level is.

[00:07:52] Speaker 03:
But it's a heck of a lot more detailed than what you're saying this diagnostic code would allow in other instances, right?

[00:08:01] Speaker 03:
It identifies the symptom, it identifies the level of severity, and then what percentage of disability goes with each level.

[00:08:11] Speaker 03:
You're right, anything could be more detailed, but this is far more detailed than what you're advocating, which is nothing.

[00:08:18] Speaker 03:
No guidance whatsoever.

[00:08:20] Speaker 01:
Well, certainly there would still be mild, moderate, and severe, and I think it would be up to the medical professionals to make an appropriate determination in view of the symptomology that the veterans exhibit.

[00:08:32] Speaker 00:
In other words, you're hanging your entire hat on the word other.

[00:08:36] Speaker 00:
There's no specifics, and you're hanging your entire argument on other.

[00:08:40] Speaker 00:
And really what you're telling us is other means everything else.

[00:08:44] Speaker 00:
because other might be some other, but not everything else other.

[00:08:48] Speaker 00:
So how do we know the parameters of other?

[00:08:51] Speaker 01:
If things are, that's right, if there's a need disability that is not otherwise rated in the diagnostic codes, then it would be appropriate to use 5257 as a catch-all, as the board has done in other instances for this code.

[00:09:06] Speaker 00:
And why was the author of the code not better served to have said,

[00:09:14] Speaker 00:
and anything not covered by the above codes.

[00:09:16] Speaker 00:
Why just the simple word other?

[00:09:18] Speaker 00:
I mean, it really gives us no guidance where it starts or where it stops.

[00:09:22] Speaker 01:
Well, I mean, I think that there's two things here.

[00:09:24] Speaker 01:
I mean, I agree that, again, you have to look at the entire regulation.

[00:09:31] Speaker 01:
And the alternative construction that you're proposing is just to remove that term altogether from the regulation.

[00:09:39] Speaker 01:
If it's just limited to

[00:09:41] Speaker 01:
to recurrent subluxation and lateral instability, there wouldn't be no reason to include other at all.

[00:09:47] Speaker 01:
It has to mean something.

[00:09:48] Speaker 00:
But if there's a reason to include other, we need some guidance as to what other should be.

[00:09:52] Speaker 00:
Is it everything else?

[00:09:54] Speaker 00:
Is it part of what's not otherwise covered?

[00:09:57] Speaker 00:
Where does it start?

[00:09:58] Speaker 00:
Where does it stop?

[00:09:58] Speaker 00:
We've got no guidance.

[00:10:00] Speaker 01:
There are many different medical disabilities that veterans suffer that are not expressly compensated

[00:10:10] Speaker 01:
that are not expressly described in the diagnostic codes.

[00:10:14] Speaker 01:
There is a real need for a catch-all to cover those types of things.

[00:10:20] Speaker 01:
And keep in mind that in other instances, with respect to the foot, with respect to the humerus, the Veterans Court has interpreted that language, the word other,

[00:10:32] Speaker 01:
other impairment of as a catch-all.

[00:10:35] Speaker 03:
Yeah, well, that hurts your case.

[00:10:37] Speaker 03:
It doesn't help you.

[00:10:38] Speaker 03:
When you juxtapose the language in this code to 5284, there's a reason, as Judge Gilstrap pointed out, to construe it differently because they don't lift a symptom at all.

[00:10:50] Speaker 03:
So clearly, it suggests that this applies to all others that are not listed elsewhere.

[00:10:57] Speaker 03:
Whereas, I think, when you just oppose that to what 5257 says, it makes clear that 527 is more limited.

[00:11:03] Speaker 03:
Why not?

[00:11:04] Speaker 01:
Well, I think, first of all, if you look at 5202, which says humorous, other impairment of, that's been interpreted by the Veterans Court as a catch-all, even though 5202 includes an enumerated list of impairments.

[00:11:19] Speaker 01:
So in Kaleck v. Shinseki from the Veterans Court in 2011, the Veterans Court determined that the board erred

[00:11:27] Speaker 01:
by not addressing whether or not a sternoclavicular sprain should have been considered under 5202, even though it's not one of the impairments that's listed.

[00:11:38] Speaker 01:
So the Veterans Court, in the context of the Kayla case, applied an interpretation to a very similar regulation that is precisely analogous to what we're arguing in this instance.

[00:11:53] Speaker 01:
Additionally, I think

[00:11:55] Speaker 01:
in interpreting the regulations, I think that the veteran's canon is something that should be considered, and that's as the Supreme Court has expressed multiple times, that under the veteran's canon, interpreted doubt must be resolved in the veteran's favor.

[00:12:14] Speaker 01:
So here there's a situation where you have the board in, for example, the Doe cases applying the interpretation of

[00:12:23] Speaker 01:
uh... fifty two fifty seven that were endorsing is appropriate and other cases in specifically in this case for Mr. Delisle they did not give him the benefit of the doubt and I think to the extent that there is a controversy in terms of how fifty two fifty seven should be interpreted the veterans can and should come into play and should let me ask you this counsel you argued a minute ago that there was a real need for this catch-all are you telling the court that we should be

[00:12:52] Speaker 00:
directed and controlled by what the need is?

[00:12:57] Speaker 00:
Should we become authors in place of the people that wrote these codes to begin with, or should we be limited to a proper construction of what has been written under the ordinary rules of interpretation?

[00:13:09] Speaker 01:
I think that the code as written contemplates this possibility by including catch-alls, by including catch-alls for the knee, by including catch-alls for the foot, by including catch-alls for the heel.

[00:13:19] Speaker 00:
But don't these other catch-alls

[00:13:21] Speaker 00:
say other without other than example one, example two, example three.

[00:13:26] Speaker 01:
Not in the case of the humorous.

[00:13:27] Speaker 01:
It's precisely the same as what we're arguing here.

[00:13:31] Speaker 03:
Okay.

[00:13:31] Speaker 03:
Why don't we save the rest of your rewriting?

[00:13:36] Speaker 03:
Thank you.

[00:13:43] Speaker 05:
Thank you.

[00:13:44] Speaker 05:
May it please the court.

[00:13:45] Speaker 05:
I'd like to pick up on that last point about 5202 and the college kids.

[00:13:49] Speaker 05:
if you actually read that callers case, it goes on to hold that any error was not prejudicial because there was no evidence that the veteran suffered from the listed symptoms and limitations.

[00:14:00] Speaker 05:
So that supports the conclusion that when, as with 5257, the diagnostic code lists specific symptoms and limitations under the general other heading, you need evidence of those specific symptoms and limitations in order to be entirely consistent with the rating.

[00:14:16] Speaker 05:
But I think the more fundamental problem

[00:14:18] Speaker 05:
that Mr. De Laio's argument suffers from is that it ignores the fact that in assigning the 10% rating under 5003, the board was including the other things he points to such as fatigue, weakness, and lack of endurance.

[00:14:35] Speaker 05:
If you look at page A22 of the joint appendix,

[00:14:39] Speaker 05:
which is the board's decision, it makes clear that that 10% rating includes consideration of pain, fatigue, et cetera.

[00:14:49] Speaker 05:
So when the Veterans Court is describing that the limitation on motion diagnostic codes include things such as pain and fatigue, it's referring to the fact that Diagnostic Code 5003, which is the limitation on motion diagnostic code,

[00:15:08] Speaker 05:
includes the other things he's identifying, such as pain, fatigue, and lack of endurance.

[00:15:13] Speaker 03:
What about your friend's argument at the tail end about the Supreme Court's guidance that if there's interpretive doubt, we have to go for the veteran?

[00:15:21] Speaker 03:
Because it seems there's a strong argument that even if we agree with you in the Veterans Court in terms of the interpretation of 52

[00:15:30] Speaker 03:
57, there's some ambiguity, as there is in most things.

[00:15:35] Speaker 03:
So what do we do if we conclude there's an ambiguity?

[00:15:38] Speaker 03:
Are we required or compelled to go for the veteran in that circumstance?

[00:15:42] Speaker 05:
No, the standard's not if there's any ambiguity.

[00:15:45] Speaker 05:
It's only when there's interpretive doubt after you've already gone through all the tools available.

[00:15:50] Speaker 05:
Namely, first you look at the plain language, and then you look at the, in this case, since

[00:15:56] Speaker 05:
a Department of Veterans Affairs interpretation giving due deference to that interpretation under Risenstein and Cathedral Candle and looking at the case law.

[00:16:08] Speaker 05:
Only if looking at these tours there's still doubt, then the tie goes to the veteran.

[00:16:14] Speaker 05:
That's all the Supreme Court cases stand for.

[00:16:16] Speaker 05:
And I would like to point out regarding the deference point

[00:16:21] Speaker 05:
The issue here isn't whether Chevron deference applies, because that only addresses statutory interpretation.

[00:16:27] Speaker 05:
Here we're dealing with the interpretation of a regulation.

[00:16:30] Speaker 05:
There is a general counsel's opinion that makes clear, for the reasons this court's expressed, that when you have, you don't use unspecified criteria, because that just creates ambiguity and inconsistent opinions.

[00:16:46] Speaker 05:
And so under Reisenstein and Cathedral Candle,

[00:16:50] Speaker 05:
this court should defer to that interpretation since it's consistent with the plain language.

[00:16:56] Speaker 04:
Do you think 52-57, which refers to other, only covers what is listed?

[00:17:04] Speaker 05:
Yes.

[00:17:06] Speaker 05:
You have to give meaning to both terms.

[00:17:10] Speaker 05:
Mr. DeLisle wants the courts only read that word other.

[00:17:13] Speaker 05:
But it includes both other and lateral instability.

[00:17:16] Speaker 04:
Then why wouldn't it read 5257 knee impairment recurrent subluxation?

[00:17:25] Speaker 05:
It could, but it used the word other.

[00:17:27] Speaker 05:
And then the issue is how can you read that?

[00:17:30] Speaker 05:
Can you read that consistent with the rest of the regulation?

[00:17:33] Speaker 05:
And you can, because subluxation and instability are other knee disabilities.

[00:17:38] Speaker 05:
So it's really referring to a subset of the type of other knees.

[00:17:42] Speaker 05:
that you need to have those symptoms in order to qualify.

[00:17:46] Speaker 00:
Let me ask you this, counsel.

[00:17:47] Speaker 00:
If the board gave the benefit to the veteran of per-arguindo saying this is a catch-all, why shouldn't we?

[00:17:57] Speaker 00:
If the board did it, why shouldn't we?

[00:18:00] Speaker 00:
Why is it not a catch-all if the board gave the consideration, at least hypothetically, that it was?

[00:18:06] Speaker 05:
Because that was an alternative holding.

[00:18:08] Speaker 05:
The Veterans Court first found it a legal matter.

[00:18:10] Speaker 05:
that it wasn't a catch-all.

[00:18:13] Speaker 05:
But then it concluded that even if it wasn't, so the Veterans Court wasn't relying on the benefit of interpretive doubt.

[00:18:20] Speaker 05:
It was merely making a second holding.

[00:18:22] Speaker 00:
So they just did that for fun?

[00:18:23] Speaker 00:
There was no reason for them to do that?

[00:18:25] Speaker 05:
They could have relied on either fact.

[00:18:27] Speaker 05:
I believe courts frequently have alternative holdings because they find multiple problems with an argument.

[00:18:34] Speaker 03:
And because they didn't trust where we might go?

[00:18:37] Speaker 05:
Well, Your Honor can say that.

[00:18:38] Speaker 04:
And you're saying the general counsel's opinion, discussing 5257 does not indicate that it's catch-all?

[00:18:48] Speaker 05:
Not in the sense that Mr. De Laio is using it.

[00:18:51] Speaker 05:
It required that you have those symptoms and limitations of subvocation and instability.

[00:18:57] Speaker 05:
Mr. De Laio attempts to distinguish that by claiming that the general counsel is only addressing the diagnostic code 5003.

[00:19:05] Speaker 05:
But the issue, when you read the statements in the context of the entire paragraph, it's clear they're referring to both diagnostic codes.

[00:19:13] Speaker 05:
Because the issue he was confronting was whether either diagnostic code 5257 or diagnostic code 5003 included unspecified criteria such that there was overlapping symptomatology.

[00:19:26] Speaker 03:
So what kind of deference is Judith?

[00:19:28] Speaker 03:
I mean, there's so many different names of deference here.

[00:19:30] Speaker 03:
I quoted... What is the deference, Judith, to the general counsel's opinion?

[00:19:34] Speaker 05:
I quoted Eisenstein, Cathedral Candle, but it's basically this court refuses to defer unless there's clear error.

[00:19:41] Speaker 05:
So I don't believe that there's clear error given the plain language, even if this court gets to the legal issue.

[00:19:49] Speaker 00:
Really, your position from the beginning is

[00:19:52] Speaker 00:
we just don't have any jurisdiction to begin with.

[00:19:54] Speaker 05:
Correct.

[00:19:55] Speaker 05:
Because of their alternative holding, which is a fact-based holding, this court does not possess jurisdiction.

[00:20:01] Speaker 03:
It seems like the world might benefit by our opining on this catch-all instance, right?

[00:20:06] Speaker 03:
It seems like it keeps coming up, and both the board and the Veterans Court aren't entirely clear on what they're to do.

[00:20:15] Speaker 05:
Certainly, but that's not a basis for jurisdiction.

[00:20:18] Speaker 05:
But I agree, John.

[00:20:20] Speaker 04:
But if a legal issue, if an interpretive issue was raised, that's a basis for jurisdiction.

[00:20:27] Speaker 05:
But if there's an alternative factual holding that disposes of the claim, then even if your honors were to rule in his favor on the legal issue, you wouldn't be able to reverse the Veterans Court on that alternative ground.

[00:20:40] Speaker 05:
So at that point, it would just be an advisory opinion.

[00:20:44] Speaker 05:
As your honor pointed out, that would basically be reaching unnecessary duplicative holdings.

[00:20:52] Speaker 05:
If you honestly have no further questions, we respectfully request that this court dismiss this appeal for lack of jurisdiction on the alternative from the Veterans Court.

[00:21:01] Speaker 03:
Thank you.

[00:21:09] Speaker 01:
A couple of points.

[00:21:10] Speaker 01:
First of all, with respect to the VA opinion of the General Counsel,

[00:21:15] Speaker 01:
It really doesn't address the relevant question in terms of whether 5257 should be applied as a catch-all or not.

[00:21:22] Speaker 01:
That's not what's addressed in that opinion.

[00:21:24] Speaker 01:
Furthermore, we submit the logic of that opinion is actually supportive of our position.

[00:21:28] Speaker 01:
Essentially, what the general counsel concluded was that it was appropriate to rate on multiple different ratings, in that case, 5003 and 5257, when the symptomology is different.

[00:21:41] Speaker 01:
And in this case, what we are arguing is that it's appropriate to rate 152.57 as a catch-all, specifically meaning when it's not expressly called out in another diagnostic code, it's appropriate to rate in this code.

[00:21:55] Speaker 01:
With respect to counsel's reference to Cathedral Candle, in this case, I think if anything, the opinion of the VA is certainly divided in that the board opinions that we cite are VA board opinions

[00:22:07] Speaker 01:
applied 5257 as a catch-all expressly.

[00:22:10] Speaker 01:
So I don't think that there's a question of appropriate deference here to be found.

[00:22:16] Speaker 01:
Finally, with respect to their argument, there is no jurisdiction because there's an alternative fact ruling.

[00:22:22] Speaker 01:
Two points.

[00:22:23] Speaker 01:
Again, that alternative fact ruling doesn't cite to any facts in the record.

[00:22:27] Speaker 01:
It doesn't cite to the board.

[00:22:29] Speaker 01:
It doesn't cite to the record.

[00:22:30] Speaker 01:
To the extent it is a fact-based ruling, it was inappropriate for the Veterans Court to make that ruling in the first instance.

[00:22:37] Speaker 01:
uh... in the back and point to the extent that it's a legal uh... an alternative legal conclusion it is also wrong and i heard you to reconsider the Mitchell case reconsider the Duluca case and look at what they were expressly covering thank you we have the honor to thank both counsel and the case