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The United States Court of Appeals of the Federal Circuit is now open and in session.

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God save the United States and its honorable order.

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Please be seated.

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Our first piece of business this morning is an attorney admission to our bar.

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I have the privilege of making the motion myself, so for purposes of its decision, I turn it over to presiding Judge Toronto to confer with Judge Chen and decide whether my motion shall be granted.

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I move the admission of Daniel C. Tucker, who is a member of the bar and is in good standing with the highest court of Virginia.

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I have knowledge of his credentials and am satisfied he possesses the necessary qualifications.

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Dan has served

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admirably as my law clerk for the last 18 months and next week will be his last week with me and I'm tremendously sad.

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He has served me with great distinction, he's worked incredibly hard, he is incredibly brilliant in the technology and law and he's really contributed to the work of our chambers in a way that will be difficult to replace so I wish I could keep him longer but

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I know that when you become a member of our bar, assuming my motion is granted, that you will do good things and bring good work product to our court and thereby improve the whole process that we are all involved in.

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So I move for his admission.

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We will grant the motion and I have some first-hand

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knowledge and much secondhand knowledge to confirm everything that was just said, and we look forward to seeing you here in a literal.

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Welcome.

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Okay, our first case for today is 2014-7017, Wingard v. McDonald.

[00:02:24] Speaker 01:
Can you tell me how to say your name, Mr. Wesh?

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Weshie, Your Honor.

[00:02:28] Speaker 01:
Weshie, Mr. Weshie, please proceed.

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May I please report?

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VA granted Mr. Wingard's claim for disability compensation in Chapter 11, Title 38, United States Code, but during his lifetime paid him absolutely no compensation.

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VA then denied Ms.

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Wingard's claim for the burial benefits under Section 2302 because VA did not pay to Mr. Wingard the compensation he was granted during his lifetime.

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The VA's decision in this matter was based on its misinterpretation of Section 1110, 1131 of the United States Code, Title 38, when it found in effect or interpreted these statutes to in effect allow the VA to grant disability compensation and then pay to that veteran who was granted that compensation nothing.

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How is it that we are entitled to even reach that question?

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I have a jurisdictional question, Your Honor.

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Is that correct?

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Indeed.

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Yeah.

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Which, at least under one view, could have two aspects.

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Was the Veterans Court wrong in reaching the merits of that question?

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Did it lack jurisdiction?

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And second, even if it lacked jurisdiction, don't we lack jurisdiction?

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This Court has independent jurisdiction to review the interpretation of law upon which the Veterans Court relied upon under 7292A.

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So even assuming without conceding that the Veterans Court was not able to review the schedule, which I would argue Ms.

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Wingard is they did not do, then this court independently still has the ability to review the Veterans Court's interpretation of that statute.

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But as the Veterans Court held, it was careful not to review the schedule.

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Rather, what the Veterans Court did was look at Ms.

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Windsor's challenge, which was whether or not section 11, 10, 11, 31 permitted VA to grant compensation but deny benefits.

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It's a strict interpretation of statutory provisions.

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How is it that the argument that the statute does not allow

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for 11 levels in the schedule, not within the bar on the Veterans Court's review of the schedule for not not interpretation of the schedule, but rather of the schedule for compliance with the statute.

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Liz Wingard's argument may have been a little inarticulate and articulate low or inartful, but her argument was essentially that Section 2302, upon which the language of requiring a payment of compensation for her to be entitled to her benefits, was a challenge to VA's non-payment to Mr. Wingard during his lifetime

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because Mr. Wingard was granted a 0% rating for his income or hernia.

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That 0% rating was, in fact, the basis upon which VA denied the payment that Ms.

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Wingard required in her claim to be successful.

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So the challenge, however, and our foot may have been below, was not necessarily to the challenge of the existence of a 0% rating per se, as much as it was to VA's interpretation of the regulations, or the statutes rather, to permit

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the VA to not pay the compensation that VA granted under Chapter 11, Benefits, Section 110, 114, 31.

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And in fact, the disability compensation scheme, which was created by Congress to provide compensation to recompense the veterans who have disabilities characterized as a disease or an injury with some impairment of earning capacity.

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This court held in the case of Davis, it's not just a disease or injury.

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It is a disease or injury plus impairment of earning capacity.

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unlike Chapter 17, which is a disability defined by statute to be just a disease or injury that causes some residual disability.

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But once your challenge is directly to the ability of the VA to have a 0% rating, everything else you're arguing, which is whether or not

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It is proper for them to conclude in this factual scenario that he should have received a 0% rating by virtue of the fact that he did have impaired earning capacity.

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That's all application of law to facts in this case.

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That isn't, it seems to me, a legal question.

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So I'm having a little trouble understanding how we would have jurisdiction over the argument you just presented, which as I understood it was, that you think it was erroneous for them to conclude in light of his diminishing capacity that he was nonetheless appropriately classified as a 0%.

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Your Honor, the argument we're carefully crafted is that VA interpreted this statutory scheme to permit it to grant a 0% rating.

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in effect as it's done in the regulations, but more importantly to deny the compensation that it had granted.

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In Mr. Wingard's claim, he was granted disability compensation.

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There is no dispute and fact of that.

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And then it assigned a 0% rating.

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And that 0% rating was the key that prevented the payment.

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However, because they granted the disability compensation, VA had to have found

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that there was at least a disability of some form, a disease or injury, plus some impairment of earning capacity.

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And that impairment of earning capacity is really what we have here that the Congress intended to recompense.

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Therefore, if the claim was granted under 1110 or 1131, such training which being essentially identical, then there had to have been a payment of compensation during his lifetime which VA did not pay, which had the effect of denying his wind guards claim because of that lack of payment.

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But how is what you just said any different from saying that as a statutory matter, zero percent rating is BARC?

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It's not a qu- well, to be careful, Your Honor, I- the focus again is really on the non-payment of compensation.

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If there is a non-payment of compensation even though it was granted, and Ms.

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Wingard in her challenge,

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can never be successful because that 2302 claim that she filed required that her father, Mr. Wingard, be in receipt of compensation.

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But for VA's misinterpretation of the statutory provisions that allowed it to not pay, in whatever form it chose not to pay, it chose in this case to program to 0% rating.

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But it could have just as easily done anything else and not paid.

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And the result for Ms.

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Wingard would have been identical.

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So Ms.

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Wingard's challenge or Ms.

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Wingard's argument is that because VA did grant the disability compensation, that there wasn't a permanent earning capacity found as a factual matter.

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And he was entitled to that payment, which he did not receive.

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And that violates express language of Section 1110-1131, that the United States will pay compensation to veterans with a service-connected disability.

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And that language is plain.

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Let's assume for the moment that our power to review the rating schedule is consistent with the veteran court's power to review the rating schedule.

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Then why is it that we can hear this question here, your challenge to the rating schedule?

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Assuming this court does not have the power to review the contents of the rating schedule, and I believe the case of Sellers has held that, then this court obviously does not have that power.

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However, the challenge is not to the contents.

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Like in the Wanner case, the Veterans Court went in and rewrote the schedule.

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They went in and took a requirement for a particular rating out of the schedule and said that's proper.

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This court said that that was improper because it was going in under 70 foot 252 B and rewriting the criteria necessary for a particular rating for tinnitus.

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This court is not doing that in this case and I'm not asking this court to do this in this case.

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What Ms.

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Wingard is challenging and asking this court to do

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is to enforce the requirements of statute that a VA is going to grant compensation, that it will pay compensation.

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There's no challenge to the percentages assigned to particular disabilities.

[00:11:07] Speaker 01:
Where did the VA, he keeps saying it's undisputed that the VA agreed that he is entitled to disability compensation.

[00:11:16] Speaker 01:
Where did they hold that?

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Because in the record, like at age 27, it says they found a disability, but that he is not entitled to compensation.

[00:11:26] Speaker 01:
So where did they find, which you kept saying repeatedly, where is it undisputed in this record that they determined he was entitled, not that he had a disability, but was entitled to compensation?

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On the next page, Your Honor, on Chronicle page 29, at the very top, the type of disability rating.

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Our type of rating is DIS for disability.

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And then down the middle there, next to the 73, 38, service connection for the particular disability, 0% from that particular date.

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The only claim... This is saying that they found he does have a service-connected disability.

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This is not saying that he is entitled to compensation for that disability.

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The VA decision here on page 27 says that we cannot grant your claim for payment of disability benefits and the basis of that was because it was less than 10% disabled.

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The claim he made

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was for disability compensation under Chapter 11.

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He has made no other claims.

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There are no other claims in the record.

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Yes, and I don't see in this record anything that establishes what you keep saying to us, which is it's undisputed in this record that the VA decided he was entitled to disability compensation.

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I only see in this record that they decided he had a service-connected disability, but that that disability didn't warrant compensation.

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Had VA not

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granted the claim, they would have expressly denied the claim as having not been

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established there was said you're claiming that my it's entirely possible isn't it that you could be disabled by virtue of a service-connected accident you could have a disability but it doesn't impair you really in any aspect of your life such that it isn't something that is going to preclude you from continuing to work in the kind of employment you've had having you know the kind of marriage you have the family you have social things you like to do isn't it possible that you could actually suffer some form of disability in the military

[00:13:24] Speaker 01:
That doesn't impair you in any way.

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Yes, Your Honor, it is possible for there to be a service-connected disability that is not right to the level of entitlement for Chapter 11 compensation.

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That would be the type of disability contemplated under Chapter 17.

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But in this context, the only claim he made and for which he was denied payment for was a disability compensation claim.

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And I would submit that that was, in effect,

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a grant, and that was not disputed at the court below.

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I'd like to reserve the remainder of my time if I may.

[00:13:54] Speaker ?:
Mr. Hockney?

[00:13:58] Speaker 02:
Yeah, please, the court.

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Scars comes to mind.

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You can have a scar, and it may not affect at all your ability to be gainfully employed, but it would be service-connected because it happened as a result of an event in service.

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So there are a lot of things.

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that could be service-connected that don't affect one's ability to be gainfully employed, which is what the compensation payment structure is all about.

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But to start with, this court doesn't have jurisdiction over this case, as we explained in our brief and in our follow-up letter brief.

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I'm sorry, this court doesn't have jurisdiction?

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This court does not have jurisdiction.

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We don't have jurisdiction even to say that the Veterans Court was incorrect in asserting jurisdiction.

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You do have jurisdiction.

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So we do have jurisdiction.

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To say that, to make a jurisdictional finding.

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To find that the Veterans Court was without jurisdiction.

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And the letter brief requested of us, the parties, whether or not the court could look at the rating schedule in any event, notwithstanding the Veterans Court's lack of authority.

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And I think, as we indicated in there, there was a change to the statute, the applicable statute, 502, Title 38, in 2008, which allows this court now to look at the rating schedule, but it can only do so as part of a rulemaking challenge under 502, and this case is not that.

[00:15:15] Speaker 02:
pursuant to a petition for rulemaking.

[00:15:17] Speaker 05:
So could Ms.

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Wingard today file a petition to the VA?

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Assuming it gets denied, then file an action here under 502?

[00:15:28] Speaker 02:
Yes, as we explained in our brief, she could approach the VA with a suggestion that the rating schedule is wrong and that it should be corrected to eliminate 0% ratings.

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And the VA would respond to that.

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And when the VA responds to that, she would have 60 days pursuant to this court's Rule 4712 to file a challenge to the VA's response.

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Is there any kind of obligation on the part of the VA to respond to such a petition?

[00:15:56] Speaker 02:
Well, I don't know.

[00:16:01] Speaker 02:
I can't give you, Your Honor, a statutory or regulatory site.

[00:16:04] Speaker 02:
I know that they have.

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I know there are two cases pending for this court right now, premised on requests for changes to the regulation.

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are two other regulations.

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And the VA responded in both of those cases.

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So I think that the VA would like to respond when asked.

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Who do they file the petition to?

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Is it to the secretary?

[00:16:24] Speaker 02:
I think they would go to the secretary and file a request for rulemaking.

[00:16:27] Speaker 02:
I think there's actually some

[00:16:29] Speaker 01:
uh... language in in a regulation somewhere that kind of spelled that out one thing that is clear is that you're you're clearly correct under the statutory language the amendment to section five oh two uh... in two thousand eight does make it clear that congress intended for APA challenges to be able to be appealed to us and not to the veterans corps but to us

[00:16:56] Speaker 01:
But one thing I'm struggling with is parsing the language in 7292.

[00:17:01] Speaker 01:
I'm having trouble making sense of that language.

[00:17:07] Speaker 01:
what what way up i mean you're going to get a report but i'm not a gal that loves legislative history so i'd like to find some plain meaning of that language that can comport with what you're suggesting which is that language doesn't also open the door for us in seventy-two ninety-two i mean well in chapter seventy-two which is part of section four or two of the veterans digital review act as opposed to section five or two of the veterans digital review act which deals with the APA review

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sets out the framework by which a claimant goes through the process and goes from the regional office to the board, to the veterans court, to this court.

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So 72 is all about the jurisdiction this court has over veterans court's decisions.

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And we have to start then at the lower level of the ladder.

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And 72-52 prohibits the veterans court from even looking at the rating schedule.

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That's clear.

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So when it comes to this court, under those provisions, under this court's jurisdictional authority pursuant to Chapter 72,

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section 402 of the VJRA.

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The language says this court won't second guess the Veterans Court's refusal to review the rating schedule, implying that the Veterans Court would normally refuse to review the rating schedule.

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And then this court wouldn't come in and mess with that decision.

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So therefore, there wouldn't be an issue about review of the rating schedule ever presented to this court if the Veterans Court's doing its duty.

[00:18:35] Speaker 01:
I think I understand what you're saying, but maybe you'll need to say it again just to make sure I understand it.

[00:18:40] Speaker 01:
But I guess because the other, what it seems that we can't review is a refusal by the Veterans Court to address what they're clearly prohibited from addressing.

[00:18:51] Speaker 01:
That doesn't mean we can't review the rating schedule as a question of law.

[00:18:56] Speaker 01:
like any other rule or regulation, that's what's troubling me about this language is it seems to say we can't fault the Veterans Court, we can't review when they say they are or are not going to reach this issue, you know, but it doesn't, it certainly should have, don't you think it could have been written more clearly?

[00:19:16] Speaker 02:
I think it was written with the assumption that 7252 comes first.

[00:19:20] Speaker 01:
But wait, are you predicating your view on the notion that we can't review anything that the Veterans Court can't review?

[00:19:28] Speaker 01:
Because, you know, there are lots of cases where that's not actually true.

[00:19:31] Speaker 02:
But an issue that can't even be presented to the Veterans Court.

[00:19:34] Speaker 01:
Yeah, okay, but constitutional issues.

[00:19:36] Speaker 02:
The Veterans Court thinks they can review constitutional issues.

[00:19:38] Speaker 01:
Okay, whatever, but you know, they may think that.

[00:19:43] Speaker 01:
It is certainly the case that in many Article I tribunals, administrative agencies, they are prohibited from reviewing constitutional challenges at all, which means they go through the rigmarole of deciding a whole case on the merits, sort of turning a blind eye to the constitutional challenge, weighing heavily in a case.

[00:20:01] Speaker 01:
And only when that case gets to us, the PTO challenges are a prime example, is the first instance in which the constitutionality issue can be addressed.

[00:20:10] Speaker 01:
I mean, that seems

[00:20:11] Speaker 01:
a little bit wasteful, but nonetheless that is the process.

[00:20:15] Speaker 01:
So certainly there exists some instances where Article III tribunals are given exclusive jurisdiction to consider an issue that may be prevalent from start to finish.

[00:20:25] Speaker 02:
I'm going to give you the statutory scheme response to this one, which is now looking at 502.

[00:20:31] Speaker 02:
So we have the two ways someone can complain or challenge an action of the secretary.

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either in a sort of case level through Chapter 72 or through a general attack on a regulation under APA rulemaking provisions, which Congress has vested with this court under 502.

[00:20:49] Speaker 02:
And up until 2008, or more precisely, at the time the Dutchman's Judicial Review Act is passed, the language prohibiting this court from reviewing the rating schedule exists in 502.

[00:21:00] Speaker 02:
So it would make no sense for Congress to say in 1988,

[00:21:07] Speaker 02:
Veterans Court, you can't review the rating schedule.

[00:21:10] Speaker 02:
Federal Circuit, you can't review it in the context of a rulemaking challenge, but notwithstanding the Veterans Court's prohibition against rulemaking of reviewing the rating schedule, the Federal Circuit can then look at it under some other view because we

[00:21:23] Speaker 01:
that's my question to you which is what precluded us from doing it in a case-by-case basis before this amendment because if this language other than a refusal to review the rating schedule was not part of the code and if we were prohibited from doing it in the context of a 502 review it is clearly a rule of law the rating schedule is a rule of law, a rule of regulation, it's one of those things

[00:21:53] Speaker 01:
So what precluded us prior to this enactment from reviewing it as part of a 7292 inquiry?

[00:22:03] Speaker 02:
Well, I think you're still precluded from reviewing it as part of 7292.

[00:22:05] Speaker 01:
I understand you think so.

[00:22:06] Speaker 01:
But the reason you think so is because Congress clearly put it in 502 and because they added a language that said other than a refusal.

[00:22:14] Speaker 01:
That language wasn't there in 88.

[00:22:16] Speaker 01:
Both of these amendments were simultaneous, right?

[00:22:20] Speaker 02:
No, no, this language, this other than a refusal was in 1988, that was part of the VJRA.

[00:22:26] Speaker 01:
Well that was already there, so that wasn't part of the amendment.

[00:22:28] Speaker 02:
No, the amendment only, what the amendment did in 2008, the Clarification Act, removed the similar language from 502.

[00:22:35] Speaker 02:
Got it.

[00:22:36] Speaker 02:
And the legislative history explains, which is actually consistent with the legislative history of BOA, which this court in Wanner discusses somewhat, that the idea here is Congress is saying the rating schedule, if you're going to allow

[00:22:49] Speaker 02:
sort of piecemeal challenges to the rating schedule through the Chapter 72 provisions.

[00:22:53] Speaker 02:
In other words, each individual claimant can make an argument about why this particular diagnostic code is wrong or that particular diagnostic code is wrong.

[00:23:01] Speaker 02:
That would lead to a nightmare in trying to run the VA program.

[00:23:06] Speaker 02:
You'd constantly be having to revise the rating schedule for every individual case, going back and changing it for all the affected veterans who might be benefiting or not benefiting from the particular diagnostic code as it was or was not interpreted.

[00:23:17] Speaker 02:
So what Congress said

[00:23:19] Speaker 02:
basically initially in 1988, was we're not going to mess with this.

[00:23:22] Speaker 02:
And we're not going to let the courts mess with it.

[00:23:24] Speaker 02:
But in 2008, as part of the Clarification Act, they said, well, we recognize that there is a possibility that we shouldn't insulate it completely from judicial review.

[00:23:32] Speaker 02:
So what we will do is allow these spatial challenges, which ideally will be broader and brushed.

[00:23:39] Speaker 02:
They will actually invite the service organizations and other folks that interest in- Just to make sure I'm clear on the fact,

[00:23:46] Speaker 01:
You're saying 7292 had this other than a refusal to review the schedule of ratings language in it, it was not added in 88 or 2000?

[00:23:56] Speaker 02:
No, I believe that this 7292 was not.

[00:23:58] Speaker 02:
The only thing that was changed in 08 was.

[00:24:00] Speaker 01:
502.

[00:24:01] Speaker 02:
And it was changed by removing this type of language, not adding it.

[00:24:05] Speaker 02:
In 502, as part of the VJRA, that kind of similar language of not reviewing the rating schedule was included in 502.

[00:24:12] Speaker 04:
Can I add to you this?

[00:24:15] Speaker 04:
You described how unsettling it would be if each veteran in his own appeal on benefits could challenge particular aspects of the schedule.

[00:24:36] Speaker 04:
Suppose one said that there was a line between challenges of schedule provisions as

[00:24:44] Speaker 04:
contrary to law versus challenges under all the other usual APA grounds, arbitrary and capricious, lacking in substantial evidence.

[00:24:54] Speaker 04:
Given that there aren't that many statutory prescriptions on the schedule, would it really be problematic as a practical matter to read this prohibition as

[00:25:12] Speaker 04:
not covering essentially pure statutory challenges to the schedule.

[00:25:19] Speaker 02:
As I think we indicated in our letter brief, APA challenges typically involve, the first question is, is the regulation consistent with its authorizing statute?

[00:25:31] Speaker 02:
Which is exactly the challenge here.

[00:25:33] Speaker 02:
The challenge is that the inclusion of a 0% rating in the rating schedule is inconsistent with 1155.

[00:25:39] Speaker 04:
My question is how many such

[00:25:42] Speaker 04:
even plausible challenges could there be?

[00:25:46] Speaker 04:
As opposed to medical science now tells you that this set of criteria you have for this particular work impairment rating is not, which would not be a statutory thing.

[00:26:02] Speaker 04:
It would be an arbitrary capricious or lack of substantial evidence.

[00:26:07] Speaker 02:
I don't know, Your Honor.

[00:26:09] Speaker 02:
I can say that 1155 doesn't

[00:26:12] Speaker 02:
require a whole lot, requires 10 levels for compensation payment purposes.

[00:26:18] Speaker 02:
So as far as challenges to trying to follow that guidance, there may not be that many.

[00:26:24] Speaker 02:
But as we see in this case, what's being argued is what the VA did in creating the schedule.

[00:26:31] Speaker 02:
The argument is that it's inconsistent with 1155, and as the merits portion of our brief demonstrates, no, it's not.

[00:26:36] Speaker 02:
It's not inconsistent.

[00:26:37] Speaker 02:
So it's difficult for me to say or predict

[00:26:40] Speaker 02:
how many similar types of challenges that don't have a strong hook in an existing statute could be made.

[00:26:47] Speaker 02:
There could be many that don't have the hook, but might have sort of the flavor of, well, it's inconsistent because it doesn't feel right.

[00:26:57] Speaker 04:
Am I remembering right that the Wanner case involved, among other things, a statutory challenge?

[00:27:03] Speaker 02:
1110, similar to this one.

[00:27:05] Speaker 02:
The argument was that the particular diagnostic code was inconsistent with 1110.

[00:27:10] Speaker 05:
Let me put a final point on it.

[00:27:13] Speaker 05:
What if the rating schedule, instead of by 10% increments, went by 5% increments?

[00:27:20] Speaker 05:
5%, 10%, 15%, 20%, all the way up to 95% and then 100%.

[00:27:26] Speaker 05:
So instead of having 10 rating levels, which is required, and no more than 10 levels is required by the statute,

[00:27:35] Speaker 05:
We're now looking at a rating schedule with 20 levels.

[00:27:38] Speaker 05:
I think, would you agree that that's contrary to the statute?

[00:27:42] Speaker 02:
I would think that that would look to be inconsistent with the statute.

[00:27:46] Speaker 05:
OK, so that sounds like now, that would be an example of the VA, through its rulemaking, having gone beyond its statutory authority, far beyond its statutory authority.

[00:28:00] Speaker 05:
And that sounds like something that

[00:28:04] Speaker 05:
there should be judicial review for.

[00:28:06] Speaker 02:
And prior to 2008, there wasn't.

[00:28:09] Speaker 02:
And prior to 1988, there was no judicial review over VA.

[00:28:13] Speaker 05:
And why is it that before 2008, we were all living in a world where the VA could do whatever it wants, whenever it wants with a rating schedule, and that goes far beyond its statutory authority?

[00:28:28] Speaker 02:
I would refer you to Congress.

[00:28:29] Speaker 02:
Prior to 1988, there was no judicial review over board of actions appeals decisions.

[00:28:34] Speaker 02:
In 1988, Congress, after a long period of time, hashed out how they would go about... Let's go to 2007.

[00:28:41] Speaker 02:
So in 2007, after... Well, let's take the step from... In 1988, Congress says, we need to provide these veterans with some judicial review forum, some option.

[00:28:53] Speaker 02:
And so that's what they did in 1980.

[00:28:54] Speaker 02:
But they drew the line at the rating schedule.

[00:28:58] Speaker 02:
And in 2007, that line continued to exist with respect to the rating schedule.

[00:29:03] Speaker 02:
And in 2008,

[00:29:04] Speaker 02:
They said we're going to loosen up review for the rating schedule, but limit it to 502 challenges before the Federal Circuit.

[00:29:12] Speaker 05:
I understand your narrative.

[00:29:14] Speaker 05:
I'm just trying to understand maybe what's the best narrative.

[00:29:21] Speaker 05:
In light of the fact of our case law, I see our case law creating two buckets.

[00:29:28] Speaker 05:
One bucket is when it comes to

[00:29:31] Speaker 05:
figuring out whether the VA has arrived at a reasonable, plausible, defensible interpretation of its own terms that's used in the rating schedule, we in the Veterans Court are free to look at that.

[00:29:44] Speaker 05:
I think you would agree with that.

[00:29:45] Speaker 05:
Then the next category is, well, when it comes to challenges as to the choices that are being made by the VA in creating and establishing a given diagnostic code, well, that's something that

[00:30:00] Speaker 05:
Neither we nor the Veterans Court would look at it.

[00:30:03] Speaker 05:
I think that's another bucket of cases from this court.

[00:30:07] Speaker 05:
Then what we have here in front of us is a third category where I don't think this court has really answered the question.

[00:30:15] Speaker 05:
What happens when the VA establishes something in a rating schedule that is beyond its statutory authority?

[00:30:25] Speaker 05:
It doesn't have the authority, the power to do what it did in the rating schedule.

[00:30:30] Speaker 05:
To me, that is a different question than the two buckets that we've looked at already.

[00:30:37] Speaker 02:
The answer is, if Congress gives the VA the authority to create a rating schedule and says, we want 10 levels, but then fails to provide any mechanism for judicial review for that rating schedule, then Congress has authorized the action of the secretary.

[00:30:53] Speaker 02:
Congress can go in and change it.

[00:30:55] Speaker 02:
Someone can go to Congress and say,

[00:30:56] Speaker 02:
They've got 20 ratings here, or 20 levels, and you're only supposed to have 10.

[00:31:01] Speaker 02:
Or now, under 502, after the clarification act of 2008, someone can come and petition the secretary and say, you've got 20 levels.

[00:31:11] Speaker 02:
You need to fix that.

[00:31:13] Speaker 02:
And if the secretary doesn't fix it, they can bring it before this court.

[00:31:16] Speaker 05:
So does your position all boil down to,

[00:31:20] Speaker 05:
what the second sentence of 7252b says.

[00:31:26] Speaker 05:
Veterans Court may not review the schedule of ratings for disabilities.

[00:31:30] Speaker 05:
Is that what it comes down to?

[00:31:33] Speaker 02:
It's a combination of that, then the language in 7292, which says this court can't second-guess that, and the language in 502, which says, and for purposes of this case, after 2008, this court can look at this issue under a 502 challenge, but the last sentence of

[00:31:50] Speaker 02:
Bible 2 makes it clear that it cannot look at it as part of a Chapter 72 challenge, because to the extent it arises as part of a Chapter 72 challenge, Chapter 72 provisions, the procedures apply, which takes you right back to the block that 7252b raises.

[00:32:06] Speaker 01:
OK, Mr. Hockey, you've exceeded your time.

[00:32:08] Speaker 01:
Mr. Weshe, you have three minutes left.

[00:32:13] Speaker 01:
Almost four minutes left.

[00:32:14] Speaker 01:
If you need a little extra, you're welcome to take it so we can balance out the time.

[00:32:26] Speaker 03:
Your Honor, just to address your point, Judge Moore, about where in the record it says that disability compensation was granted.

[00:32:32] Speaker 03:
The point to be made here is that there is no such thing as a claim for service connection.

[00:32:37] Speaker 03:
It is a misnomer that is well spread throughout the VA system.

[00:32:41] Speaker 03:
There's a claim for disability compensation, a way to prove disability compensation, or many of the other benefits is for that disability to be service connected.

[00:32:50] Speaker 03:
So service connected is a term of art to describe what that disability is in the context of that particular statutory scheme.

[00:32:57] Speaker 03:
So here, where Mr. Wingard was granted a 0% rating, VA had to have granted as a matter of law, as a matter of what happened, that they found an impairment learning capacity and they found that his claim to be granted, the 0% rating itself is a downstream issue.

[00:33:18] Speaker 03:
We don't get to the question of rating until we get to the question of whether or not there's something to rate, and that would be a service-connected disability.

[00:33:24] Speaker 01:
Am I wrong?

[00:33:24] Speaker 01:
I mean, I'm by no means an expert in any of this veteran stuff, but when it is deemed to be a service-connected disability, doesn't it also open up certain medical compensation avenues for a veteran that would not otherwise be available, meaning that even if it doesn't impair work or earning or anything else,

[00:33:45] Speaker 01:
you know, maybe there are issues where he would need to seek medical treatment because he does have a disability, even if it isn't one that disables him and therefore it warrants compensation in terms of actual money each month, but wouldn't a determination that he has such a disability entitle him to greater medical coverage than he would otherwise have.

[00:34:06] Speaker 03:
It can, Your Honor.

[00:34:07] Speaker 03:
But again, under Chapter 17, specifically to your question, has a lower threshold for what a disability is for Chapter 17 purposes, as opposed to Chapter 11 purposes.

[00:34:16] Speaker 03:
Chapter 17, by definition, Chapter, I believe, Section 1701, says that a disability is defined as a disease or injury that has physical and mental disabilities.

[00:34:27] Speaker 03:
It doesn't have anything in there about an impairment of running capacity.

[00:34:31] Speaker 03:
This court and the Veterans Court in a case called Allen

[00:34:35] Speaker 03:
and Section 4.1 of the regulations describes that for Chapter 11 purposes, disability is a disease or injury of the physical or mental body, plus some impairment of earning capacity.

[00:34:48] Speaker 03:
So if there's a grant of Chapter 17 benefits, there's not an ancillary grant of Chapter 11 benefits, but if there's a Chapter 11 benefit, there is potential entitlement to Chapter 17 benefits should that veteran decide to go ahead and make that claim.

[00:35:01] Speaker 03:
In Mr. Wingard's case, or the appendix of 27,

[00:35:04] Speaker 03:
They actually state he does have the entitlement, but he needs to go out and apply for it still.

[00:35:08] Speaker 03:
So they didn't just automatically grant him the health care benefits.

[00:35:11] Speaker 03:
And that's pretty typical in the system.

[00:35:14] Speaker 03:
With regard to this course jurisdiction, the case of Nykold, I think, is instructive, where the court said that the court needs to have clear evidence of intent of Congress to restrict the jurisdiction of that court.

[00:35:27] Speaker 03:
Here there is no clear evidence.

[00:35:29] Speaker 01:
Why?

[00:35:30] Speaker 01:
Why are we not just bound by Wanner?

[00:35:31] Speaker 01:
Why is this even an issue that is open to us?

[00:35:35] Speaker 01:
In Wanner, the court concluded, and it actually cited the exact language in 7292 about refusal, other than a refusal to review, and concluded that no judicial review was available for any challenge to the writing.

[00:35:52] Speaker 01:
Our court in Wanner said that and if 7292 wasn't modified, the only question left open for us, we're bound by Wanner, the only question left open for us is did what Congress do in 502 change the state of how we should apply 7292 because we're bound by what we said the language in 7292 meant in Wanner.

[00:36:14] Speaker 01:
So I don't see, I guess in light of that, I don't see how the, if your jurisdiction argument is the way the government characterizes it, if your claim argument is the way they do it, I don't see how you can get around Lanner.

[00:36:27] Speaker 03:
Well, Lanner itself is a single one of the facts because in that case,

[00:36:30] Speaker 01:
this veteran's correction women and took a little red pencil and we wrote the schedule on the fact that they do have different names.

[00:36:37] Speaker 01:
I mean the question is, is there a distinction vis-a-vis the holdings that the court reached which clearly is predicated on no judicial review of anything related to ratings?

[00:36:49] Speaker 03:
Well certainly when the regulation was, or I'm sorry, when 502 was changed with 702-82 it did open the door I believe and I posit that

[00:36:59] Speaker 03:
for this court to go ahead and do those kind of challenges as Judge Chen had suggested there.

[00:37:03] Speaker 03:
We do have a situation here where the Congress apparently was concerned that there would be absolute no judicial review of any kind of enactment

[00:37:11] Speaker 01:
And that... The kind of challenge that Shem was suggesting is when the VA enacts a rating schedule that is otherwise clearly contrary to law, contrary to their authorizing statute.

[00:37:23] Speaker 01:
And what our court said in Wanner is the Veterans Court statement in Villano that it may review whether a particular code is contrary to law, cites only to 38 USC 7252B.

[00:37:34] Speaker 01:
The language of 7252B, however, removes Veterans Court jurisdiction over all reviews

[00:37:40] Speaker 01:
involving content or rating schedule and the Secretary's action in adopting them.

[00:37:44] Speaker 01:
And so it goes on to say, even though we recognize a unique exception in our case when it's a constitutional challenge,

[00:37:50] Speaker 01:
It seems to me it has clearly rejected the idea that there is a different treatment that ought to be accorded to an argument related to contrary to law and other kinds of challenges of the rating schedule.

[00:38:04] Speaker 03:
When Congress authorized this court to review the schedule under 502 and by extension 7092 and the third sentence of 502,

[00:38:12] Speaker 03:
it opened the door for exactly those kinds of challenges that the Veterans Court could not do.

[00:38:17] Speaker 03:
Otherwise, with that language still existing in 502, this court could not, nor could the lower court, review any challenges to the schedule.

[00:38:26] Speaker 03:
Any challenges to the schedule in any form would be limited constitutional challenges, and the only court in the land that might foreseeably be able to look at that would be

[00:38:34] Speaker 03:
of the Supreme Court of the United States.

[00:38:36] Speaker 03:
That said, when Congress opened up the door to Jewish review... Under 502.

[00:38:44] Speaker 03:
I'm sorry?

[00:38:44] Speaker 03:
Under 502, right?

[00:38:48] Speaker 03:
I was actually thinking more in 1988 under the VGRA, but under 502,

[00:38:54] Speaker 03:
uh... if the intent of congress was to provide for higher level judicial review they had previously precluded again we're looking at the general congress to provide something just review of this court that had previously been uh... forbidden by statute you know final pot interact i would go out for these very reason to put a reason to my brief report should reverse the decision of the veterans court and remand for their proceedings account for their argument he he he