[00:00:00] Speaker 01: Gentlemen, we have four argued cases before the court this morning. [00:00:07] Speaker 01: The first is a veteran's case. [00:00:11] Speaker 01: The other three are patent cases from different fora. [00:00:15] Speaker 01: The first case on the docket is docket number 157030, Hudgins versus McDonald. [00:00:22] Speaker 01: Mr. Andrews, you want to save three minutes for rebuttal? [00:00:25] Speaker 00: Yes, ma'am. [00:00:26] Speaker 00: Yes, ma'am. [00:00:27] Speaker 01: All right. [00:00:29] Speaker 01: You may begin. [00:00:33] Speaker 00: May it please the court. [00:00:35] Speaker 00: My name is Thomas Andrews. [00:00:36] Speaker 00: I'm here on behalf of Mr. Hudgens. [00:00:38] Speaker 00: This is a case involves the interpretation of diagnostic code 5055. [00:00:43] Speaker 00: The VA has taken a position that applies to total knee replacements. [00:00:48] Speaker 00: The Veterans Court on appeal took the position that were interpreted to apply only to total knee replacements involving the tibia, the fibia, and the patella. [00:00:57] Speaker 00: And we're arguing in this court that just based on the plain interpretation, the plain meaning of this language, [00:01:03] Speaker 00: that it applies to Mr. Hudgens surgery, which was a partial knee replacement. [00:01:08] Speaker 01: Now, you have a pretty high burden here to establish that we should even address the merits of this or the interpretation of this regulation, given that there is a remand, correct? [00:01:19] Speaker 01: Yes, ma'am. [00:01:20] Speaker 00: There is a remand. [00:01:21] Speaker 00: And we think we fit well within the Williams exceptions. [00:01:24] Speaker 00: First, we note this is a purely legal question. [00:01:27] Speaker 00: We know he had a partial knee replacement. [00:01:28] Speaker 00: It is in a situation where we need to find out what type of surgery he had. [00:01:32] Speaker 00: So that's everything before the court. [00:01:36] Speaker 00: But additionally, we think they're going to make an argument where the VA has made an argument in their brief regarding the analogous rating regarding 5055. [00:01:46] Speaker 04: If there's a rating by analogy, can it not be the same specific [00:01:57] Speaker 04: Number, same diagnostic code number? [00:02:00] Speaker 00: It's not actually. [00:02:01] Speaker 00: It is under a different regulation. [00:02:03] Speaker 00: It's under 4.20 instead of 4.71, diagnostic code 5055. [00:02:09] Speaker 00: So it's found in a different source. [00:02:11] Speaker 00: Now, in terms of how they internally code that, they internally code it as 5055- and there's a four-digit letter that stands for the analogous code. [00:02:21] Speaker 00: I'm not sure what it is. [00:02:23] Speaker 00: So it isn't coded even in the same way. [00:02:26] Speaker 00: It's just a typical rating under 5055. [00:02:29] Speaker 00: Additionally, we think it's important. [00:02:32] Speaker 06: What is your understanding of what an analogy is? [00:02:36] Speaker 06: Well, they are supposed to look at three different. [00:02:39] Speaker 06: Generally speaking, what do you understand an analogy to be? [00:02:43] Speaker 00: An analogy is a similarity, something that is close, so it's regarded as similar. [00:02:53] Speaker 01: But so under that application, under the analogous consideration, he could possibly get an award that would be the same that he would be entitled to if he were allowed to proceed under the regulation that you want him to proceed under. [00:03:11] Speaker 00: Yes, ma'am. [00:03:12] Speaker 00: Yes, Your Honor. [00:03:13] Speaker 00: But I think we have to look at the analogous rating. [00:03:15] Speaker 00: The beauty about 5055 is if a veteran comes in and can prove that he's had a knee replacement, [00:03:22] Speaker 00: he automatically gets a minimum 30% rating. [00:03:25] Speaker 00: Under the analogous rating scheme, they aren't going to automatically give him that rating. [00:03:30] Speaker 00: Instead, they're going to look and see. [00:03:31] Speaker 00: They're supposed to look at three things, whether the function's the same, the location is the same, and the symptoms are the same. [00:03:39] Speaker 00: So by remanding it, they are robbing him of his automatic rating, his automatic minimum rating. [00:03:44] Speaker 04: Although the result could be the same in the end. [00:03:46] Speaker 00: The result could be the same, except that he has to go through these extra steps, and he has to be [00:03:51] Speaker 00: subjected to extra scrutiny and analysis. [00:03:54] Speaker 01: I mean, how do you distinguish this circumstance from miore? [00:03:59] Speaker 01: I'm not sure how you pronounce that, miore. [00:04:01] Speaker 01: You didn't really try to distinguish that in your brief. [00:04:04] Speaker 00: Well, whenever I looked at miore and even when, whenever I go back and look at those, what I saw over and over was sort of this language of the veteran may win or lose on the facts of his case without regards to the challenged regulations. [00:04:18] Speaker 00: Here, there's no way he can get a rating under 5055 [00:04:21] Speaker 00: that automatic minimum rating to which he's entitled to, subjecting him to the remand. [00:04:26] Speaker 04: But under the facts of his case, he could get the same result in the end, yes? [00:04:32] Speaker 00: It's the same result. [00:04:33] Speaker 00: He has to, with more analysis and more scrutiny by the VA. [00:04:38] Speaker 01: Okay, so what you're saying is even if he gets the same rating at the end of the day, he gets that he would get that same rating with [00:04:48] Speaker 01: an entirely different process. [00:04:50] Speaker 01: Is that what you're saying? [00:04:51] Speaker 01: That's exactly. [00:04:51] Speaker 01: And he could never recapture the shortened process. [00:04:54] Speaker 01: That's right. [00:04:55] Speaker 01: Yes, Your Honor. [00:04:57] Speaker 06: The statute or the regulation 4.2, analogous rating, says when an unlisted condition is encountered, it will be permissible to rate under a closely related disease. [00:05:15] Speaker 06: Replacement for a knee joint is a listed condition, isn't it? [00:05:20] Speaker 00: Well, and that really circles back to our principle argument in terms of the plain meaning of 5055. [00:05:28] Speaker 00: We think it clearly or we think it encapsulates a partial knee replacement. [00:05:33] Speaker 06: Assuming the government is correct and it does not, why would a partial be analogous to something that's not otherwise permitted? [00:05:45] Speaker 00: Well, I would anticipate the VA is going to argue that it's not similar enough under 4.20. [00:05:53] Speaker 06: Don't worry about what they're going to argue. [00:05:54] Speaker 06: What are you going to argue? [00:05:56] Speaker 06: Are you interested in an analogous result? [00:06:00] Speaker 06: In your NOD, you did not list, when you filed your NOD, you only talked about 50-55. [00:06:08] Speaker 06: You didn't talk about 4.2. [00:06:13] Speaker 00: And I wasn't representing Mr. Hudgens at that point, but I think he specifically thought he should have a rating under 5055 and not under the analogous rating. [00:06:21] Speaker 00: I think he didn't want to be subjected to the additional scrutiny and analysis that's required under 4.20. [00:06:27] Speaker 00: And that's why we think that this escapes the non-final rule. [00:06:33] Speaker 06: Maybe I should reserve my concerns for what is analogous until the government takes the floor. [00:06:39] Speaker 06: OK, go ahead. [00:06:40] Speaker 01: What about, though, assuming that you're right, and we can consider this despite the remand, what do we do with the fact that we're supposed to give at least some form of deference to the board's decision-making? [00:06:56] Speaker 00: Well, first I would point out the 17 board decisions that I've presented to the court, where they've all found, or those have found, that 5055 does apply to partial new replacement [00:07:08] Speaker 00: So what we have here is under agency deference, you're supposed to consider is this consistently applied? [00:07:14] Speaker 00: It hasn't been consistently applied according to their proper interpretation. [00:07:19] Speaker 00: I would argue it has actually been consistently applied with regards to our interpretation that 5055 does apply to partial knee replacements. [00:07:27] Speaker 00: Those decisions there from 98 through 2014 actually during the pendency of this case, their highest adjudicatory body was saying 5055 applies to partial knee replacements. [00:07:36] Speaker 00: And they're not made by one or two rogue board members. [00:07:39] Speaker 00: There are 14 different board members made their 17 decisions. [00:07:43] Speaker 00: So I would argue this is a widely held view by the board. [00:07:48] Speaker 00: And so it's not consistently applied. [00:07:51] Speaker 00: And so you should not give them the same doubt. [00:07:53] Speaker 01: What about the fact that now they've undertaken rulemaking to actually make it clear that it doesn't cover partially replacement? [00:08:00] Speaker 00: I would argue that that actually is an admission by the VA that this is an ambiguous code. [00:08:06] Speaker 00: They essentially put in a footnote saying that prosthetic replacement means total, not partial joint replacement. [00:08:13] Speaker 06: If that was needed... Do you have any objection to that post-hoc thing being applied to your case? [00:08:23] Speaker 00: I'm sorry for talking over you. [00:08:26] Speaker 00: It shouldn't apply to Mr. Hudgens. [00:08:28] Speaker 06: Why not? [00:08:30] Speaker 00: Because he should be given the benefit of the law at the time of his application, at the time of the decision. [00:08:35] Speaker 00: So we would argue that really the VA's own regulation or this new regulation from July is probably the best evidence that this, they at least consider this to be an ambiguous regulation. [00:08:49] Speaker 01: Are we under our deference or is Gardner what controls this? [00:08:55] Speaker 00: I think there's a tough tension between our and Gardner. [00:09:01] Speaker 00: This court has noted it, you've noted it in Johnson v. McDonald. [00:09:06] Speaker 00: I think the best way to maybe resolve it in this case is to look at their consistently held opinion. [00:09:13] Speaker 00: And since they don't have a consistently held opinion, I don't think you need to give them deference. [00:09:18] Speaker 00: Now, you can go further and say, Our has really suffered under Christopher v. Smithkline and Decker v. Northwest. [00:09:24] Speaker 00: There have been real suggestions by our Supreme Court that agency deference isn't going to be given the same heath. [00:09:31] Speaker 01: Justice Scalia, who wrote Our, has said it doesn't make any sense, right? [00:09:35] Speaker 00: That's exactly right and especially within the still the law it is still the law and and You are constrained by that and I'm constrained by that but in this situation where you also have the Supreme Court saying Ambiguity should be resolved in favor of the veteran I mean that creates a real tension and especially whenever you have a situation here where they haven't consistently taken a position that five zero five five only plus total knee replacements in your view that [00:10:02] Speaker 06: 5055 is ambiguous or that it is clear that it includes partial replacements? [00:10:09] Speaker 06: Which way are you going? [00:10:10] Speaker 00: I've looked at this thing. [00:10:12] Speaker 00: I've debated that over the last month, whether I should just concede plain meaning. [00:10:16] Speaker 00: And I really, the more I look at it, I think it clearly includes a partial knee replacement. [00:10:21] Speaker 00: If you look at the definition of knee joint that they put forward in their brief, I think pages 28, it's really consistent with ours. [00:10:28] Speaker 00: It's the area between the tibia, the femur, and the patella. [00:10:32] Speaker 00: And here, a prosthetic implant was placed there. [00:10:35] Speaker 00: I mean, we know that. [00:10:37] Speaker 00: And we know also if you look sort of where 5055, it's embedded within a larger section 5051 through 5111. [00:10:47] Speaker 00: That's titled prosthetic implants. [00:10:49] Speaker 00: It doesn't say total or complete prosthetic implants. [00:10:51] Speaker 00: It just says prosthetic implant. [00:10:53] Speaker 00: And we know Mr. Hudgens had a prosthetic implant placed there. [00:10:57] Speaker 00: So I have a difficult time. [00:11:00] Speaker 00: Also, again, looking back at their own decisions by the Board of Veterans' Appeals, a May 20, 2014 decision. [00:11:07] Speaker 00: So during the pendency of this case says, by its very terms, the code applies to prosthesis of the knee and doesn't differentiate between total and partial knee replacements. [00:11:16] Speaker 00: And then they give it to a partial knee replacement. [00:11:18] Speaker 06: If you win under a plain meaning interpretation, are you conceding that under an ambiguous interpretation you don't win? [00:11:27] Speaker 00: Oh, I think I would win under an ambiguous interpretation too. [00:11:30] Speaker 00: If the court... You're going to win either way. [00:11:33] Speaker 00: I think so. [00:11:35] Speaker 00: It's the best position to be in. [00:11:36] Speaker 00: That's a good case to have, yeah. [00:11:44] Speaker 00: I can see my time is fast expiring. [00:11:47] Speaker 00: I would also just want to point out there is an unpublished Veterans Court case where then Judge Hagel, now Chief Judge Hagel, said 5055 applies just based on its plain meaning. [00:11:58] Speaker 00: that two partial knee replacements. [00:12:01] Speaker 00: I'll note this was from 2012. [00:12:03] Speaker 00: The VA there, they didn't ask for a panel decision. [00:12:06] Speaker 00: They didn't appeal to this court. [00:12:08] Speaker 00: They accepted it, which leads me to think in 2012, they were fine with that interpretation. [00:12:13] Speaker 00: Also in our brief at pages 333 through 336, we include portions from their brief in that underlying case. [00:12:22] Speaker 00: And there really the argument made by the veteran was that they hadn't considered 5055. [00:12:28] Speaker 00: The VA came back and said, we did consider 5055. [00:12:31] Speaker 00: I would have expected them to then say, but it doesn't apply to your partiality replacement anyway. [00:12:37] Speaker 00: They didn't make that argument in 2012 in Taylor v. Shinseki. [00:12:42] Speaker 00: And I think that indicates what their view of it was at that time. [00:12:47] Speaker 00: OK, why don't you save the rest of your time for a rebuttal. [00:13:07] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:13:09] Speaker 02: I think the threshold issue here is also the dispositive one. [00:13:13] Speaker 02: And as you pointed out, Judge O'Malley, it's the one where the plaintiff has a very high burden to establish that this Court should hear the case. [00:13:22] Speaker 02: This was an appeal of a non-final order. [00:13:24] Speaker 02: The Veterans Court remanded the case down. [00:13:26] Speaker 02: And under this Court's rules, that's typically not sufficient for an appeal. [00:13:33] Speaker 01: But there's no doubt we have jurisdiction. [00:13:35] Speaker 01: The only question is whether we choose to exercise it, right? [00:13:38] Speaker 02: That's right. [00:13:40] Speaker 01: So this whole Williams framework is really a discretionary analysis, right? [00:13:45] Speaker 02: That's right. [00:13:46] Speaker 02: It's sort of a prudential analysis, the court. [00:13:48] Speaker 06: So that prudential analysis is pretty much tied into the merits of the case. [00:13:53] Speaker 06: That is to say, if it is the case that on a remand, and I want to get to exactly what was [00:14:03] Speaker 06: the decision of the VA, the Veterans Court on remand. [00:14:07] Speaker 06: It's very puzzling if you look at their last paragraph conclusion, but we'll do that in a minute. [00:14:14] Speaker 06: If there is a question on remand as to whether this issue will survive, then we can exercise our discretion and say we better decide it now, right? [00:14:27] Speaker 06: If, on the other hand, it's clear it [00:14:31] Speaker 06: it will survive, then that's a different issue. [00:14:35] Speaker 06: Isn't that really sort of what we're at? [00:14:37] Speaker 06: So the question I would put to you, Mr. Hellman, is the question that puzzles me. [00:14:45] Speaker 06: Your position is that 50-55 is a dead letter as far as he's concerned because it's clear that a partial replacement doesn't apply under 50-55, right? [00:14:58] Speaker 06: That's correct. [00:14:59] Speaker 06: And so he would have to do it by analogy. [00:15:03] Speaker 06: And your position is he's entitled to do it by analogy. [00:15:07] Speaker 06: Well, that puzzles me a little bit for this reason. [00:15:10] Speaker 06: I would have thought an analogy to 50-55, which deals with hip replacements, would be an elbow replacement. [00:15:18] Speaker 06: That is, let's assume for the moment that there is no provision for elbow replacements, and that issue comes up. [00:15:26] Speaker 06: Because if you read [00:15:29] Speaker 06: it says when an unlisted condition is encountered. [00:15:35] Speaker 06: Well, the unlisted condition would be the elbow replacement, presumably, in my hypothetical. [00:15:41] Speaker 06: And you could, by analogy, say, well, let's look at hip replacements. [00:15:46] Speaker 06: But hip replacements, partial or total, are not unlisted, depending upon how you construe 50-55. [00:15:55] Speaker 06: So I don't see how you could have an analogy [00:16:00] Speaker 06: to a prohibited from your viewpoint. [00:16:02] Speaker 06: I don't see how you could grant an analogous remedy for something that your position is prohibited by the code. [00:16:14] Speaker 06: Your position is 50-55 prohibits a partial replacement recovery under 50-55. [00:16:22] Speaker 06: Explain to me how an analogy to a prohibited [00:16:28] Speaker 06: partial replacement could be an analogy. [00:16:30] Speaker 04: Is it prohibited or is it your position that it's not covered? [00:16:36] Speaker 02: And are those the same? [00:16:38] Speaker 02: I'm not sure they're quite the same. [00:16:39] Speaker 02: Our position is that a partial knee replacement is not covered under the direct language of 50-55, which applies to prosthetic replacement of the knee joint. [00:16:48] Speaker 02: I think this is maybe where the distinction lies, Judge Plager, is that the rating by analogy talks about an unlisted condition. [00:16:56] Speaker 02: And I'm not sure if a knee [00:16:58] Speaker 02: placement is the condition. [00:16:59] Speaker 02: It is a remedy for the condition, which is degeneration of the knee to some extent through whatever cause, arthritis or any other type of knee affliction. [00:17:14] Speaker 02: And so I don't think we would dispute that Mr. Hudgens has a condition afflicting his knee for which he had a remedy. [00:17:23] Speaker 02: Now, the code does not cover that specific [00:17:27] Speaker 02: Remedy, it doesn't cover the partial knee replacement he had. [00:17:31] Speaker 02: It covers total one by its length. [00:17:33] Speaker 06: The condition of his knee, the injury to his knee is a listed condition, isn't it? [00:17:45] Speaker 06: Isn't it? [00:17:46] Speaker 06: It has to be, otherwise you couldn't have a total replacement provision for that injury. [00:17:51] Speaker 06: So it's a listed condition. [00:17:54] Speaker 06: But 420 says an unlisted condition. [00:17:58] Speaker 06: So I'm puzzled. [00:18:01] Speaker 06: If I were sitting on the board and this came before me and said, well, it's analogous to 50-55, I would scratch my head and say, how can it be analogous to a condition that's listed, the condition being the injury to the knee? [00:18:16] Speaker 06: That's what's troubling me about your definition of 50-55 as precluding [00:18:23] Speaker 06: a partial replacement. [00:18:24] Speaker 06: You see how this is all sort of tied together in the ultimate question of, is it true that 50-55 cannot be read to include a partial replacement? [00:18:39] Speaker 06: Isn't that ultimately the question we have to decide? [00:18:44] Speaker 02: If this court were to find that it should review the merits, yes. [00:18:51] Speaker 02: I do think that [00:18:52] Speaker 02: I think the position that the agency has taken is that the analogous rating provision covers not only, I guess, unlisted conditions in the sense of your hypothetical if it's a joint that's not listed in the diagnostic code schedule, but also given its mandate to interpret these, to administer the law broadly. [00:19:16] Speaker 06: Point two doesn't talk about the joint. [00:19:18] Speaker 06: It talks about the condition. [00:19:20] Speaker 02: Right. [00:19:21] Speaker 02: And I think that is the distinction in your hypothetical that the condition here is covered to the extent that if it was severe enough to require a total knee replacement, it would be covered under diagnostic code 5055. [00:19:41] Speaker 02: However, I guess the less severe condition that only [00:19:45] Speaker 02: It requires a partial knee replacement and that sense would be unlisted because it doesn't qualify under 50-55. [00:19:51] Speaker 02: So I think in that case the board would turn to 4.20 and look at it by analogy and say, well we have a severe knee condition that calls for a total knee replacement and that's covered but that's not what we have here. [00:20:05] Speaker 02: Here we have an unlisted condition. [00:20:06] Speaker 02: It's a milder form of knee. [00:20:09] Speaker 02: affliction, and that only calls for a partial near replacement. [00:20:12] Speaker 02: We don't have a code for that, but let's look at it by analogy. [00:20:14] Speaker 02: Let's look at it by the three factors that the court looks at, symptomatology and analogous location and function. [00:20:26] Speaker 01: You argue that this issue won't be lost after remand, but that's only if he loses, correct? [00:20:40] Speaker 02: That's right, Your Honor. [00:20:42] Speaker 01: So if he's able to establish by analogy that he's entitled to the benefits, then we'll never get to this legal issue because you will argue that it's moot, right? [00:20:52] Speaker 02: That's right, Your Honor. [00:20:53] Speaker 02: But then he would have gotten the relief he requests. [00:20:56] Speaker 02: And that's exactly the Donaldson case. [00:20:58] Speaker 02: There, the court said that the case should not be heard because if the veteran wins, that's not [00:21:07] Speaker 02: the third Williams factor that's not satisfied under that condition. [00:21:13] Speaker 01: But again, these cases are all very fact-specific, are they not? [00:21:17] Speaker 01: In each instance, you're supposed to look at the precise circumstances. [00:21:21] Speaker 01: I mean, this isn't like a situation where a prior panel says, we don't have jurisdiction over something and we're bound by that. [00:21:31] Speaker 01: This is where a prior panel is looking at its own facts and exercising its own discretion. [00:21:37] Speaker 02: Your Honor, I would say that because this court's jurisdiction is only limited to looking at the legal questions, that the fact that there are different factual circumstances is irrelevant. [00:21:47] Speaker 01: It's irrelevant to how you apply Williams? [00:21:49] Speaker 02: Well, I think that the individual facts in each specific case would not be here on review because of this court's limited jurisdiction. [00:21:59] Speaker 02: So you'd have to look at, these would be specific legal questions that the court would be examining. [00:22:04] Speaker 02: So the fact that in Donilon, [00:22:07] Speaker 02: It was a small, it was a intestinal surgery that happened and here it's a knee replacement. [00:22:13] Speaker 02: I don't think that is quite, that distinction is relevant. [00:22:17] Speaker 02: I think the relevant issue is whether the legal issue is effectively unreviewable at a later stage in a litigation. [00:22:26] Speaker 02: And the Donnellyn Court said that that risk does not include the possibility that the veteran will prevail on remand and therefore not need to take another appeal. [00:22:34] Speaker 02: And if Mr. Hudgens prevails here, [00:22:37] Speaker 02: on the rating by analogy and gets the relief that he seeks, the case will be moved. [00:22:44] Speaker 06: You would concede, would you not, that the rating by analogy requires additional criteria over what 50-55 requires? [00:22:52] Speaker 06: 50-55 simply says, did you have a knee replacement? [00:22:56] Speaker 06: However defined. [00:22:58] Speaker 06: And if so, you get 100% for the first year, and so on and so on. [00:23:03] Speaker 06: Whereas the argument by analogy is, I read [00:23:07] Speaker 06: regulation requires that the functions affected, not only the functions affected, but the anatomical localization and symptomatology are closely analogous. [00:23:23] Speaker 06: Now, your argument was a very interesting one. [00:23:25] Speaker 06: You said, well, if it's not as severe as a total replacement, you only needed a partial replacement. [00:23:35] Speaker 06: You're not going to have this analogous anatomical localization and symptomology as you would in a total replacement. [00:23:44] Speaker 06: That was your argument. [00:23:47] Speaker 06: And therefore, it seems he loses under 4.2 by your very argument before us, which is that he has a different condition. [00:23:58] Speaker 06: So what are we to do with that? [00:23:59] Speaker 06: How can he be said to get the same remedy [00:24:06] Speaker 06: for the condition if he has a different condition? [00:24:10] Speaker 02: He may have a different condition in the sense that it does not fit within the requirement for a total knee replacement. [00:24:17] Speaker 02: But if you look at the diagnostic code, it actually provides several rating levels, depending on the severity of the pain and the weakness in the extremity. [00:24:28] Speaker 02: And so while he may not [00:24:31] Speaker 02: qualify for some of the more severe ones, he may qualify for some of the less severe ones. [00:24:35] Speaker 02: I think that's a factual determination that the board is going to have to make in the first instance, which is why this case was remanded by the Veterans Court. [00:24:44] Speaker 06: And I think... And if we follow that analysis as you proposed it, we at least have a question as to whether he'll get the same remedy, don't we? [00:24:54] Speaker 02: Well, and I believe if he does not, if he feels that he's entitled to a greater remedy under 50-55 than he received under [00:25:01] Speaker 02: the rating by analogy, he would still be able to appeal that issue after remand and after going through the Veterans Court when he has a final ruling. [00:25:11] Speaker 02: So there's no need to address this under the Williams exception because there's no substantial risk that the decision would not survive a remand. [00:25:18] Speaker 02: It's only in that context where the very remand itself violated the rights of the appellant that this court generally hears these cases. [00:25:31] Speaker 02: Judge O'Malley, to your point earlier about whether he is entitled to sort of a shortened process under 50-55 rather than the rating by analogy, and I think Judge Plager, you also kind of alluded to that. [00:25:44] Speaker 02: Because the board and the VA has a broad duty to assist, they look at all the factors. [00:25:48] Speaker 02: It's not just that he submits his claim under 50-55. [00:25:51] Speaker 02: They look at the receipt from the hospital that says he had a total knee replacement and he goes home. [00:25:56] Speaker 02: They look at the other codes. [00:25:58] Speaker 02: Do they do the tests for flexing the knee, for extending the knee? [00:26:01] Speaker 02: And so in practice, I don't think this really gives him any shorter of a process. [00:26:09] Speaker 02: It may be a little bit more defined to say he fits under this diagnostic code rather than having to meet the elements of rating by analogy. [00:26:17] Speaker 01: Well, there are a lot more merits assessments that need to go on regarding his injury, correct? [00:26:24] Speaker 02: But I think those merits assessments would happen regardless otherwise he would be here arguing that the board didn't fulfill its duty to assist and giving him additional ratings under some of these other diagnostic codes relating to the knee. [00:26:37] Speaker 03: So your answer is a non sequitur because Judge O'Malley asked if there were a lot more and you said that's right and then you said it wasn't right. [00:26:47] Speaker 03: So which is it? [00:26:52] Speaker 02: You could shake both. [00:26:59] Speaker 02: I think there are more requirements that he would have to fulfill to satisfy the rating by analogy that is correct your honor. [00:27:05] Speaker 02: Whether those requirements would happen during the process anyway I think is a slightly different question and I think our position is because of the board's duty to assist they would, as they did in this case, one of the other issues was the flexing or the extending of Mr. Hudgens knee and to the extent that [00:27:22] Speaker 02: He has knee instability. [00:27:24] Speaker 02: He was also given other ratings under different diagnostic codes. [00:27:29] Speaker 02: And that's also, I think, part of that was remanded back. [00:27:36] Speaker 02: I assume I'm getting close to the end of my time. [00:27:38] Speaker 02: So in concluding, just for the reasons that we stated in our brief, we'd request that this court dismiss the appeal at this time. [00:27:51] Speaker 06: Mr. Andrews, I have only one question. [00:27:54] Speaker 06: Yes, sir. [00:27:54] Speaker 06: Why didn't you save yourself and this court and the government all this angst and just wait until the remand and then figure out what your client did or did not get, rather than come up on what, in a sense, is a partial appeal? [00:28:13] Speaker 06: Why didn't you just wait? [00:28:14] Speaker 00: Because I won a case this year. [00:28:16] Speaker 00: I won a case just a couple of weeks ago [00:28:20] Speaker 00: has been going on since 2010. [00:28:22] Speaker 00: Whenever things go to the VA, they're supposed to handle them expeditiously. [00:28:26] Speaker 00: But in reality, it's actually quicker to come to this court to get a decision. [00:28:31] Speaker 00: How do you get around Donnelly? [00:28:33] Speaker 00: I think we get around Donnelly because it talks about the violation of a right to an immediate decision. [00:28:37] Speaker 00: And under 5055, we have a right to a minimum rating in this. [00:28:45] Speaker 00: I would point out. [00:28:46] Speaker 01: But Donalyn specifically says that the risk of not being able to raise the issue after remand doesn't include the risk that the issue might get mooted by a victory. [00:28:59] Speaker 01: So how do you get around that? [00:29:01] Speaker 00: I think we get around it. [00:29:02] Speaker 00: I go back to what I said. [00:29:04] Speaker 00: We have a right to an immediate decision in this case, which I think Donalyn also talks about. [00:29:09] Speaker 00: Also talking about the 4.20 discussion or language. [00:29:14] Speaker 00: You're right, there's a difference. [00:29:16] Speaker 00: It talks about an unlisted condition, and most diagnostic codes involve a condition, a hurt knee. [00:29:23] Speaker 00: Whereas 5055 is unusual, it involves the actual surgery. [00:29:28] Speaker 00: And so there is an odd disconnect where 4.2 talks about the condition, whereas we aren't really in exactly that situation. [00:29:39] Speaker 00: And so I'm not sure that the analogous rating would apply [00:29:43] Speaker 00: specifically to this situation. [00:29:49] Speaker 01: Thank you so much.