[00:00:00] Speaker 00:
Today is 2014-7061, Gill v. McDonald.

[00:00:07] Speaker 00:
Mr. Carpenter, you may proceed.

[00:00:09] Speaker 02:
Thank you, Your Honor.

[00:00:11] Speaker 02:
May it please the Court, Kenneth Carpenter appearing on behalf of Franklin Gill.

[00:00:15] Speaker 02:
An issue in this approval is a note to a VA regulation concerning a diagnostic code for the evaluation of hypertension.

[00:00:24] Speaker 02:
That note states in pertinent part that hypertension must be confirmed by readings taken two or more times on at least three different days.

[00:00:33] Speaker 02:
The question presented by this appeal is whether or not the confirmation or continuing confirmation of hypertension is required in order to determine what the appropriate rating is in the context of an increased rating as opposed to the initial rating assigned.

[00:00:50] Speaker 02:
The Veterans Court erroneously deferred to the VA's interpretation of this note that such confirmation only applies to confirming the existence of hypertension.

[00:01:02] Speaker 02:
No such limitation is intended by the plain language of note one.

[00:01:06] Speaker 02:
The VA's diagnostic code for rating hypertension has to be interpreted as applying each time the rating is considered.

[00:01:16] Speaker 02:
that the confirmation of the existence of hypertension is as important in the first grant of service connection as it is in a later evaluation of the rating.

[00:01:28] Speaker 02:
The VA's interpretation is not entitled to deference because the interpretation offered in this matter is not the same interpretation as was offered by the VA when it published this interpretation

[00:01:44] Speaker 02:
published this note in its 1997 amendment to the schedule for ratings for the cardiovascular system.

[00:01:56] Speaker 02:
In that public notice, the VA expressed two specific objectives.

[00:02:03] Speaker 02:
First, to ensure that there was an unambiguous criteria.

[00:02:07] Speaker 02:
The criteria set out in the note is unambiguous.

[00:02:11] Speaker 02:
There must be confirmed readings

[00:02:13] Speaker 02:
taken on two or more days, excuse me, two or more times on at least three different days.

[00:02:20] Speaker 02:
That simply didn't happen in this case.

[00:02:23] Speaker 02:
Those facts are not in dispute.

[00:02:26] Speaker 02:
The Veterans Court erred by accepting the VA's post hoc rationalization that it interpreted the note in the litigation as being applicable only in the first instance.

[00:02:39] Speaker 02:
The VA's previous schedule for

[00:02:43] Speaker 02:
Note 1 for Diagnostic Code 7101 stated that careful attention to the diagnosis and repeated blood pressure readings was required, but the previous note applied only to the ratings at 60 and 40.

[00:03:02] Speaker 02:
This new note applies to all levels of ratings.

[00:03:06] Speaker 02:
and all levels of ratings as those ratings are reviewed based upon a request, as in this case, based upon the belief that the severity of the hypertension has increased from the initial rating to a rating at a later date.

[00:03:24] Speaker 02:
The VA in its published statements indicated that they proposed to revise the note to state the careful and repeated measurements of blood pressure readings

[00:03:35] Speaker 02:
are required in order to assign prior to the assignment of any compensable evaluation, meaning that it applies to all evaluations at both the initial rating and at any later date in which the rating is to be reconsidered.

[00:03:54] Speaker 02:
The VA also unambiguously stated that the intent of this note was to assure the existence of hypertension is not conceded on the basis of

[00:04:05] Speaker 02:
a sole reading taken on a single and perhaps unrepresented day.

[00:04:11] Speaker 02:
And that's precisely what the record was in this case, that there were merely single readings taken on a single day.

[00:04:19] Speaker 02:
The VA's interpretation restricts the need for repeated diagnosis to initial, excuse me, to initial, repeated readings to initial diagnosis when it's conceded or not conceded.

[00:04:36] Speaker 02:
Under the VA's interpretation, the need for establishing the continuing existence of hypertension no longer exists once the initial rating has been made.

[00:04:48] Speaker 02:
Such an interpretation is simply unreasonable.

[00:04:51] Speaker 02:
A continuing need does exist, as this case clearly demonstrates, in order to ensure that the hypertension

[00:04:59] Speaker 02:
is confirmed to exist.

[00:05:02] Speaker 02:
And the only way that that hypertension can be confirmed to exist under this note is by repeated readings taken on more than one day.

[00:05:11] Speaker 04:
They're not necessarily the same thing, Mr. Perpner.

[00:05:17] Speaker 04:
If the VA is concerned about conceding the existence of hypertension, that seems to point towards an initial concession.

[00:05:30] Speaker 02:
Well, yes, Your Honor, except that in order to be able to be entitled to both continuing compensation as well as increased compensation, you have to have evidence that the disability continues to exist.

[00:05:46] Speaker 02:
And the fact that it may have existed at the point in time five years earlier.

[00:05:53] Speaker 04:
When they get to spend a multiple day, multiple times.

[00:05:57] Speaker 02:
has nothing to do with whether or not there is confirmation of the continued existence of that condition when that matter comes back before the VA five or six or eight or ten years later to determine whether or not an increase is warranted the same way that the VA would be entitled to reduce the rating.

[00:06:18] Speaker 02:
But they would have to reduce that rating by the basis of some objective criteria.

[00:06:24] Speaker 02:
And that objective criteria is what's set out in the note.

[00:06:29] Speaker 02:
Only readings that are taken two or more times on each of at least three different days can corroborate the existence as well as the severity of hypertension in order to be accurately measured.

[00:06:44] Speaker 02:
The Veterans Court mistakenly relied upon the VA's post-taught litigation position

[00:06:50] Speaker 02:
and not upon the VA's published interpretation of its amendment in 1997 to Diagnostic Code 7101.

[00:07:00] Speaker 02:
The regulatory history in this case does not express the intent relied upon by the Veterans Court and the VA that only one set of readings is required.

[00:07:11] Speaker 02:
Below the VA argued that multiple blood pressure readings required by Note 1 apply only with regard to the initial confirmation.

[00:07:21] Speaker 02:
and not to the assignment of the disability rating.

[00:07:25] Speaker 02:
That simply makes no sense given that the only criteria that is available for rating is what the readings are.

[00:07:33] Speaker 02:
That's all that you use to assign a rating.

[00:07:37] Speaker 02:
And those readings are outlined at page 7 of our brief in which you have to have a specific measured reading that is above

[00:07:50] Speaker 02:
a certain level in order to be able to be assigned a rating.

[00:07:55] Speaker 02:
The litigation position is not entitled to deference.

[00:07:58] Speaker 02:
Deference is instead required to the VA's published interpretation.

[00:08:03] Speaker 02:
Unless there's any further questions from the panel, I'll be happy to reserve the balance of my time.

[00:08:08] Speaker 00:
Thank you, Mr. Carpenter.

[00:08:14] Speaker 00:
Mr. Fruskin.

[00:08:16] Speaker 05:
Thank you, Your Honor.

[00:08:17] Speaker 05:
May it please the Court?

[00:08:19] Speaker 05:
The position advanced by Mr. Hill's counsel before you now would read into Note 1, a requirement that VA reconfirm the existence of the chronic disability every time a veteran comes back to seek an increased rating.

[00:08:36] Speaker 05:
There's simply no support in the plain language of the note or in the final agency rule for a requirement on VA to reconfirm the existence of a disability.

[00:08:46] Speaker 05:
The language in the final agency rule is quite clear that the reason for the inclusion of sentence 1 and note 1, the multiple testing requirement, was to ensure that the existence of hypertension

[00:08:58] Speaker 00:
but not to be based on all of his after all uh... that were taken both the one he committed at one fifty over ninety six and three that were taken by the b a right one thirty over sixty five and the other two uh... quite frankly under those numbers he wouldn't qualify under any of the category correct or hypertension right correct uh... and so

[00:09:26] Speaker 00:
What is the criteria by which you argue the VA would be permitted to take away the 10% that he currently has?

[00:09:34] Speaker 00:
I mean, he's now come and said, I should get 20.

[00:09:37] Speaker 00:
And quite frankly, it looks like he doesn't even deserve 10.

[00:09:40] Speaker 00:
So if you're saying, well, we don't have to give him tests over three different days to decide whether he's entitled to 20, does that mean you likewise don't have to give him tests over three different days to decide whether to take away his 10?

[00:09:53] Speaker 05:
Yes, the examination he was given was on a board remand.

[00:09:57] Speaker 05:
It said, we need an examination to determine the current severity and nature of his hypertension.

[00:10:04] Speaker 05:
That required the examiner to use the questionnaire, which says... You haven't taken away his test.

[00:10:10] Speaker 05:
Right, no, I'm saying.

[00:10:11] Speaker 05:
But the examination is the first step to determine what his level of hypertension is.

[00:10:17] Speaker 05:
If he has an established diagnosis of hypertension,

[00:10:20] Speaker 05:
It only requires the VA to take three blood pressure readings in that one examination.

[00:10:24] Speaker 05:
If those blood pressure readings, when combined with the other... Is there something else?

[00:10:30] Speaker 00:
Maybe I'm missing something.

[00:10:31] Speaker 00:
You said if he has an established diagnosis of hypertension, the VA is required to take three different readings in one visit.

[00:10:39] Speaker 00:
Correct.

[00:10:40] Speaker 00:
What says that?

[00:10:42] Speaker 00:
Because I don't see that.

[00:10:44] Speaker 05:
I'm sorry.

[00:10:44] Speaker 05:
The questionnaire that the VA uses for the examiner.

[00:10:48] Speaker 05:
has a question that says, has hypertension been established?

[00:10:50] Speaker 05:
If no, it refers to no one.

[00:10:52] Speaker 05:
You must do two tests taken over three separate days.

[00:10:55] Speaker 05:
If there is an established diagnosis of hypertension, it says, go to the next step, which is just to take the three blood pressure readings in one day.

[00:11:02] Speaker 05:
And that is careful and repeated testing of blood pressure, which is referred to in the final agency rule before the compensable rating is determined.

[00:11:12] Speaker 04:
Is there a circumstance under which the VA says, well, it's been established, but now it no longer exists?

[00:11:19] Speaker 05:
It could if your blood pressure, if your hypertension went away.

[00:11:22] Speaker 00:
Well, like here, didn't it?

[00:11:24] Speaker 00:
I mean, none of the readings that you took qualified for any of the categories.

[00:11:29] Speaker 05:
Well, they don't just take, they don't just look at those three readings.

[00:11:32] Speaker 05:
The rating specialists look at all the blood pressure readings in the record.

[00:11:35] Speaker 05:
I mean, they also look at his meds.

[00:11:37] Speaker 05:
True, they look at his meds.

[00:11:38] Speaker 05:
So here they determine that he had predominantly diastolic of 100 percent, but he's on Medicaid, excuse me, 100.

[00:11:45] Speaker 05:
But he's on medication, so that factors into it.

[00:11:47] Speaker 00:
He's on medication.

[00:11:49] Speaker 00:
The reg says, minimum evaluation for an individual with a history of diastolic pressure, predominantly 100 or more, or more, who requires continuous medication for control.

[00:12:00] Speaker 00:
Oh, you're saying that the medication is what, that he would, absent the medication, have 100 or more.

[00:12:06] Speaker 05:
It's unclear, but he is on continuous medication to control his hypertension.

[00:12:10] Speaker 05:
And so the 10% says,

[00:12:12] Speaker 05:
a predominantly diastolic pressure of 100 who requires continuous medication.

[00:12:18] Speaker 00:
Is your interpretation of the second portion that he would have 100 or more absent the medication but takes continuous medication or that he has to have 100 or more while on the medication?

[00:12:30] Speaker 05:
Are you talking about the 10% criteria?

[00:12:33] Speaker 05:
My interpretation of that is that he needs to have a history of predominantly 100% more and requires continuous medication.

[00:12:41] Speaker 05:
I'm sorry, there's an or.

[00:12:42] Speaker 05:
So it would be simply that he requires continuous medication to control his hypertension.

[00:12:47] Speaker 05:
If in fact, even with that medication, his numbers qualified him for higher ratings, then he would be eligible.

[00:12:53] Speaker 00:
But he could get 10% even if he doesn't have 100 or more while on medication, as long as there existed some history prior where he did have 100 or more?

[00:13:04] Speaker 05:
Well, the minimum evaluation

[00:13:06] Speaker 05:
with a history of diastolic pressure, predominantly 100 or more, who requires.

[00:13:10] Speaker 05:
So he would have to have that 100 as a historical diastolic blood pressure and be on continuous medication.

[00:13:17] Speaker 05:
And the definition in the note, you could actually have hypertension that would not qualify you for the 10%.

[00:13:22] Speaker 05:
You could have slightly lower hypertension.

[00:13:26] Speaker 05:
Although the VA believes that the plain language of the regulation is clear,

[00:13:34] Speaker 05:
The final agency rule supports the VA's consistent interpretation of note one as only requiring this testing for confirming the existence of hypertension.

[00:13:45] Speaker 05:
It's quite clear in the language in the agency rule that the agency stated they had revised the note to require that hypertension be confirmed by readings taken two or more times on each of at least three different days to ensure.

[00:13:58] Speaker 00:
And so just to be clear about how this would apply to Mr. Gill or other veterans,

[00:14:05] Speaker 00:
there had been three readings that one day and they had each indicated an entitlement to 20 percent.

[00:14:13] Speaker 00:
That's what he would have been awarded under the standard practice.

[00:14:16] Speaker 00:
You wouldn't have said he has to come back another day.

[00:14:18] Speaker 05:
No, no.

[00:14:19] Speaker 05:
I mean if the results, even if they're unrepresentative, and I don't concede that they are, but if they are and they allure to the benefit of the veteran, the VA would not require him to come back.

[00:14:27] Speaker 05:
They wouldn't say,

[00:14:28] Speaker 05:
question that you have.

[00:14:31] Speaker 00:
And he could at any point file another application, right?

[00:14:35] Speaker 00:
Like if he had some evidence from an independent physician that would substantiate a new claim, he could at any point file a new claim and he could have three more tests done.

[00:14:47] Speaker 05:
He could request of the VA even an ongoing claim to have a new examination because he could say, I was nervous that day or whatever.

[00:14:55] Speaker 05:
for whatever reason, or he could submit private medical examinations of his blood pressure readings in support of his claim to say that that day was unrepresentative and here I have much higher readings on other days of private medical reports.

[00:15:10] Speaker 01:
Is there a rationale why VA follows a different measurement protocol for initial diagnosis versus a revisit to the situation?

[00:15:22] Speaker 05:
The purpose of the revision of the cardiovascular system as stated in the final rule was to conform their system to current medical literature and tests.

[00:15:32] Speaker 01:
Let me ask a question a little more specifically.

[00:15:34] Speaker 01:
For an initial diagnosis, you take two measurements on three different days or six overall measurements.

[00:15:44] Speaker 01:
And when you come back around, say, because someone wants the higher rating, you're only going to take three measurements and they're all done in a single day.

[00:15:55] Speaker 01:
Is there a reason why VA thinks it's okay to not for that circumstance to just take all the measurements on a single day versus when doing an initial diagnosis?

[00:16:06] Speaker 05:
Because the medical literature they're basing their determination on only says to confirm the existence of a chronic disease, hypertension, you need to take repeated testing over a period of time.

[00:16:18] Speaker 05:
The medical literature does not say, if you're simply trying to find the current severity, the level of the hypertension, that you need to take a similar testing protocol.

[00:16:29] Speaker 04:
The other reason is that... Let me ask you a question.

[00:16:31] Speaker 04:
It's just pure speculation on my part.

[00:16:35] Speaker 04:
If the FDA suspects

[00:16:36] Speaker 04:
that in order to obtain a higher rating, the veteran has gone off their meds.

[00:16:42] Speaker 04:
Can they call them back in and retest on other days?

[00:16:49] Speaker 04:
So somebody comes in and they're spiked.

[00:16:53] Speaker 04:
They're well, well over 100.

[00:16:57] Speaker 04:
Do they just give them, they do three ratings?

[00:17:01] Speaker 04:
Is the policy not to question that?

[00:17:04] Speaker 05:
I honestly, I don't know the answer to that question.

[00:17:08] Speaker 05:
I think in the rating specialist review, they're not just going to look at the current ratings, they're going to look at all the readings.

[00:17:16] Speaker 05:
And I think in that circumstance, if there was a really out of character spike, the rating specialist might say, hey, this seems out of character.

[00:17:24] Speaker 05:
Either we need further examinations or these need to be discounted because they're so far outside.

[00:17:30] Speaker 05:
And perhaps it would be sent back to determine whether or not

[00:17:33] Speaker 05:
coming off the medication.

[00:17:34] Speaker 00:
Would it help you to focus on the language, which says diastolic pressure predominantly 130 or more?

[00:17:39] Speaker 00:
Sure.

[00:17:40] Speaker 00:
Yeah.

[00:17:40] Speaker 05:
And that's why they look at the history of it.

[00:17:42] Speaker 05:
I don't think they would completely discount the possibility that in fact their hypertension simply has spiked and has gotten much worse.

[00:17:48] Speaker 05:
And that would be consistent with the reason the veteran's coming back.

[00:17:52] Speaker 05:
But I think that that possibility certainly exists, that they would question it and require additional evidence, another examination.

[00:18:01] Speaker 04:
What I was trying to ask, you know,

[00:18:03] Speaker 04:
The three readings doesn't automatically get you that entry.

[00:18:08] Speaker 05:
No, and I think it's important.

[00:18:10] Speaker 05:
This is not a note that cabins the use of blood pressure readings in the evaluation.

[00:18:16] Speaker 05:
It's all read in context.

[00:18:17] Speaker 05:
The fact is, for Mr. Gill, he had dozens of blood pressure readings in the record.

[00:18:23] Speaker 05:
All of them were reviewed in determining his level of compensation.

[00:18:27] Speaker 05:
This court has any further questions.

[00:18:29] Speaker 05:
Thank you.

[00:18:36] Speaker 02:
I'd like to focus on two things.

[00:18:38] Speaker 02:
First, the rationale.

[00:18:40] Speaker 02:
The government suggests that there is a rationale, and that rationale is the rationale that is expressed in its public statement in 1997, which is to do these to confirm the existence.

[00:18:58] Speaker 02:
The VA interprets confirming the existence as only to apply at the initial determination.

[00:19:06] Speaker 02:
I would secondly then like to direct your attention to how these conditions are rated.

[00:19:12] Speaker 02:
They are rated by blood pressure readings.

[00:19:15] Speaker 02:
And those readings have to be met in order to be able to get an increase.

[00:19:21] Speaker 02:
If you don't follow the same procedure for the initial determination that you follow later, then you are unable to get a reading, excuse me, a rating

[00:19:34] Speaker 02:
that will allow for an increase, because by the very nature of what they explained in their 1997 publication was that the medical literature says in order to get accurate readings, you have to test multiple occasions on three or more days.

[00:19:54] Speaker 04:
Are you saying, Mr. Carpenter, that it is VA policy that once hypertension has been established, if a vet

[00:20:05] Speaker 04:
and has higher readings that over three times over the course of one day that they will not increase?

[00:20:15] Speaker 02:
No, I'm not saying that at all.

[00:20:16] Speaker 02:
I'm saying that the veteran who comes in and gets, as Mr. Gill did, three readings on a single day is not consistent with the note and that it is also not consistent with the VA's published notice

[00:20:30] Speaker 02:
as to why they wrote the note that way, not just for the 60 and 40, which is what the note was for prior, but for all readings.

[00:20:41] Speaker 02:
Clearly there was an expansion from the two highest readings

[00:20:45] Speaker 02:
to all of the readings because there was a recognition in the literature that you needed to be able to take multiple readings on multiple days, and that that was the only way to get an accurate assessment of the readings.

[00:20:59] Speaker 02:
And the VA has sort of fudged and said, well, we, by our methodology, do three on one day.

[00:21:07] Speaker 04:
Are you saying that the medical literature does not differentiate between establishment of the existence of the hypertension and

[00:21:15] Speaker 04:
separately increases in the continuation of the hypertension?

[00:21:19] Speaker 02:
Yes, I am.

[00:21:21] Speaker 02:
That's the way that I understand the interpretation of that medical literature from the VA's explanation in 1997 for why they changed the name.

[00:21:32] Speaker 04:
No, no, no, no, no.

[00:21:33] Speaker 04:
Is there any medical literature in the record that says what you're saying?

[00:21:38] Speaker 03:
oh no no no no i'm sorry excuse me no no there's not but i have trouble enough with the law getting into medicine would be a severe i've always said that lawyers and people couldn't do the math if they get into medicine thank you very much your honor so much for the questions thank both counsels the case is taken under submission

[00:22:06] Speaker ?:
I'm of course adjourned for tomorrow morning at 10.