[00:00:00] Speaker 02:
932, Gazelle versus Shulkin.

[00:00:31] Speaker 01:
Mr. Carpenter, good morning.

[00:00:38] Speaker 00:
The red brief says that you haven't provided any citation to any time where the VA has ever arithmetically added disability ratings.

[00:00:56] Speaker 00:
Can you do that?

[00:00:59] Speaker 00:
Can you provide an example?

[00:01:00] Speaker 00:
No, I don't believe I can, Your Honor.

[00:01:03] Speaker 01:
No.

[00:01:03] Speaker 00:
But regardless of their practice, the question here is what does the phrase... They've been doing it since after World War I. I think 1929 or thereabouts they were doing it.

[00:01:17] Speaker 01:
Which in the words of this court in Gardner and repeated by the Supreme Court in Gardner, that status-winded isolation does not mean that they were doing it correctly.

[00:01:26] Speaker 01:
They were not doing it correctly, Your Honor, because

[00:01:28] Speaker 01:
The phrase additional disabilities independently rateable simply means what it says.

[00:01:35] Speaker 01:
It is plain on its face.

[00:01:38] Speaker 01:
What the Veterans Court did and what the VA has been doing for decades has been importing their combined rating table that has absolutely nothing to do with the process of awarding special monthly compensation.

[00:01:53] Speaker 01:
There are two specific requirements.

[00:01:56] Speaker 01:
The first requirement is that you have a single disability rated totally disabling.

[00:02:04] Speaker 01:
That negates the use of the VA's combined rating table.

[00:02:12] Speaker 01:
The VA's combined rating table serves only one purpose, and that is when there are multiple disabilities that are not individually rated total.

[00:02:23] Speaker 01:
that you collectively analyze those using the table in order to determine the amount of compensation which will be paid up to total.

[00:02:34] Speaker 01:
Total has been met by the first requirement.

[00:02:37] Speaker 01:
Mr. Gazelle has a single disability rated totally disabled.

[00:02:42] Speaker 01:
The question then is when we move to requirement two, why would the VA resort to using 4.25 or their combined rating table?

[00:02:52] Speaker 01:
And the answer is that there is no function, there is no purpose, except to prevent the award under 1114S1.

[00:03:00] Speaker 01:
The use of the combined rating table, as in this case, only precludes the qualification.

[00:03:10] Speaker 00:
Mr. Gazelle?

[00:03:11] Speaker 00:
What was the underlying purpose of the use of the table initially?

[00:03:19] Speaker 01:
To determine what the total

[00:03:22] Speaker 01:
what the combined effectiveness, efficiency, I believe is the language used in 4.25, of the individual.

[00:03:32] Speaker 01:
But that combined efficiency caps any total rating.

[00:03:37] Speaker 01:
Once you achieve the total rating, there is no longer a purpose for 4.25.

[00:03:43] Speaker 01:
You either achieve it by getting a combined rating of 100% in which this

[00:03:49] Speaker 01:
this statute would not apply because you would not have a single disability rated total.

[00:03:56] Speaker 01:
But when you have, as here, a single disability rated total, you simply look to the other additional disabilities to determine whether they amount to 60% as independently rated.

[00:04:07] Speaker 04:
So is it your position that the statute is unambiguous that it requires a straight up mathematical formulation?

[00:04:14] Speaker 04:
Correct.

[00:04:15] Speaker 04:
And so we'd have to agree with you and agree that

[00:04:19] Speaker 04:
There is no other interpretation that could be reasonable, correct?

[00:04:25] Speaker 01:
That would be necessary.

[00:04:27] Speaker 01:
Under the hands of statutory construction, if the statute is plain on its face, you stop there.

[00:04:32] Speaker 04:
Right.

[00:04:33] Speaker 04:
If we agree it's unambiguous.

[00:04:35] Speaker 01:
If you agree that it's unambiguous.

[00:04:36] Speaker 04:
If we thought it was ambiguous and that there was an alternative construction that was at least reasonable, we would have to defer to that, right?

[00:04:46] Speaker 01:
With the predicate that it was reasonable, yes.

[00:04:48] Speaker 01:
And my view is that it is not reasonable, per se, because it only serves one purpose, that function, and that is to prevent a veteran from qualifying for special monthly compensation under 1114 S-1.

[00:05:03] Speaker 01:
And that is inconsistent with the statutory scheme.

[00:05:07] Speaker 01:
The statutory scheme designed a series of special circumstances in which a veteran is going to get more compensation

[00:05:16] Speaker 01:
than the amount of compensation that is provided by the scheduler rating that is contemplated by 1155.

[00:05:21] Speaker 01:
The 1155 regulation caps out at a total rating.

[00:05:29] Speaker 01:
Special monthly compensation adds to that.

[00:05:33] Speaker 01:
You get the total rating plus.

[00:05:36] Speaker 01:
And the plus here is when you have a single disability rated total and additional disabilities that are 60 or more.

[00:05:43] Speaker 04:
Isn't it even possible to read the statute, even though it says refers to disability or disabilities, that any one of them would have to be over 60% before it could be counted?

[00:05:58] Speaker 01:
I don't think so, Your Honor, because the use of the alternative

[00:06:06] Speaker 01:
would seem to negate that interpretation.

[00:06:09] Speaker 04:
Well, you could argue that what if you have three or four that are 60 percent?

[00:06:14] Speaker 04:
In other words, they could be simply saying that you've got to get to 60 with at least one.

[00:06:23] Speaker 04:
In other words, I think there's a lot of different ways you could interpret this statute and not necessarily conclude that it is unambiguous in every single way.

[00:06:39] Speaker 01:
I have to disagree with that, Your Honor, because to parse the statute in that way... Of course you have to, because you would lose if you don't disagree.

[00:06:48] Speaker 01:
That would be absolutely correct, and I would like to avoid doing it.

[00:06:54] Speaker 01:
To parse the statute in that fashion does what I believe the VA does, and the Veterans Court affirmed the doing of, which is to find the means to exclude.

[00:07:06] Speaker 04:
The statute should not be interpreted.

[00:07:09] Speaker 04:
In fairness, the VA and the Veterans Court actually are interpreting in a more veteran-friendly fashion than I just laid out or posited.

[00:07:18] Speaker 04:
So they're at least allowing for a mechanism of combining them.

[00:07:23] Speaker 01:
And what I'm suggesting is that if Congress had intended to have them combined, 1155 and 1157,

[00:07:35] Speaker 01:
demonstrate that Congress knew how to use the term in combination.

[00:07:40] Speaker 01:
They didn't use that phraseology here.

[00:07:42] Speaker 01:
They didn't say combined.

[00:07:45] Speaker 01:
They simply said additional disabilities independently rateable at 60% or more.

[00:07:51] Speaker 01:
So the question becomes, what does the phrase mean when it says independently rateable?

[00:07:57] Speaker 01:
It is independent from requirement one that it doesn't relate back to.

[00:08:02] Speaker 01:
The VA's own regulation

[00:08:04] Speaker 01:
recognizes this distinction between the first requirement of the total disability and something separate that is independently rateable, other disabilities that don't relate to or are not dependent upon that first disability.

[00:08:21] Speaker 01:
But the goal here is to award special monthly compensation when a veteran is in a specific type of circumstance and they have additional disability

[00:08:32] Speaker 01:
rated at 60 or multiple disabilities that are independently rateable at 60.

[00:08:37] Speaker 00:
Well, that's how the VA interprets it.

[00:08:39] Speaker 00:
But Judge O'Malley's point is a good one.

[00:08:43] Speaker 00:
You're saying that the question is, what additional service-connected disabilities mean?

[00:08:50] Speaker 00:
And she's saying, what does independently rateable at 60% or more mean?

[00:08:55] Speaker 00:
And it could be a reasonable interpretation that each one of those has to be at least 60%.

[00:09:00] Speaker 00:
I'm not saying it is.

[00:09:03] Speaker 01:
I hear that, Your Honor.

[00:09:04] Speaker 01:
But what I'm trying to respond to is that even with that interpretation, that does not support the interpretation relied upon by the Veterans Court.

[00:09:12] Speaker 01:
The interpretation relied upon the Veterans Court was to export 4.25 and the VA's combined rating table.

[00:09:19] Speaker 01:
And there is just no basis within the plain language to suggest such a reach.

[00:09:26] Speaker 00:
As Judge Romali said, though, that's a more veteran-friendly

[00:09:31] Speaker 00:
interpretation than this plausible reading?

[00:09:36] Speaker 01:
Yes, and that's why this court has to go back and look at this through the lens of veterans' statutes, and that veterans' statutes must be interpreted in a manner that most advances the interest of the beneficiary.

[00:09:54] Speaker 01:
And the beneficiary in this case is the veteran.

[00:09:57] Speaker 01:
He has

[00:09:58] Speaker 01:
a total rating, he meets requirement one, there is no dispute.

[00:10:02] Speaker 01:
He then has three ratings of 20, 20, and 20.

[00:10:05] Speaker 01:
That meets the requirements of the statute as written.

[00:10:12] Speaker 01:
The only reason to import 4.25 is to deny his qualification.

[00:10:21] Speaker 01:
And the VA concedes that if you meet the requirements under 4.25,

[00:10:27] Speaker 01:
meaning that he had, let's say, a third 20, that he would have a combined rating of more than 60 and meet the qualification.

[00:10:37] Speaker 04:
How do you get around Guerrero though?

[00:10:40] Speaker 04:
Didn't we specifically say that in considering this statute, you're supposed to use the combined ratings table?

[00:10:48] Speaker 01:
With respect, Your Honor, Guerrero only addressed requirement one.

[00:10:53] Speaker 01:
Guerrero did not address, and it was not at issue, what was the meaning of combined within requirement two.

[00:11:02] Speaker 01:
And what Guerrero was addressing was whether or not you could have multiple disabilities.

[00:11:09] Speaker 01:
Let's use the example of diabetes, where a diabetes has multiple disabilities that collectively, under the combined rating table, meet the requirements of 4.125.

[00:11:20] Speaker 01:
Guerrero said, no, you can't use the combined grading table to get to it because it's not a single disability.

[00:11:28] Speaker 01:
And that the difference between requirement one is that you must have a single disability.

[00:11:36] Speaker 01:
And if the notion is that you have to have single disabilities, then 320s are 60.

[00:11:44] Speaker 01:
And if 320s are 60, then Mr. Gazelle and any other veteran

[00:11:48] Speaker 01:
who has, let's say, five, six disabilities rated at 10% meets that requirement and is not penalized by the use of 4.25.

[00:11:58] Speaker 01:
I see that I'm in the way of the button.

[00:12:00] Speaker 01:
I'm here from the government.

[00:12:00] Speaker 01:
Thank you.

[00:12:08] Speaker 03:
Good morning.

[00:12:09] Speaker 03:
May it please the court.

[00:12:11] Speaker 03:
Torture to affirm the decision of the Veterans Court.

[00:12:13] Speaker 03:
Plain meaning of the statute shows that Congress intended for VA to use the combined ratings table to determine whether a veteran is entitled to special monthly compensation.

[00:12:23] Speaker 02:
Can I ask you about that?

[00:12:24] Speaker 02:
I mean, how do we make a plain reading?

[00:12:26] Speaker 02:
I mean, you're saying that because Congress knew that this is what the Veterans Administration has been doing for decades, then we assume that that was the underpinning.

[00:12:37] Speaker 02:
That's not a plain reading.

[00:12:39] Speaker 03:
It is the plain meaning of the statute.

[00:12:41] Speaker 03:
It's not plain language, but it is plain meaning.

[00:12:43] Speaker 03:
And this court has recognized over and over and over again, for example, in Borrella, that the court is not just to look at the language in the statute itself, but also to look at other subsections of the statute, its placement within the statutory and regulatory scheme, essentially the legal backdrop under which the statute was enacted.

[00:13:02] Speaker 02:
So why would it be impossible or

[00:13:06] Speaker 02:
routine for us to construe this provision in a way that corresponds to the other provisions.

[00:13:12] Speaker 02:
This is a separate and distinct provision.

[00:13:14] Speaker 02:
There's nothing in the statute that deals with this particular situation of A, you got a hundred percent rating, that's there.

[00:13:22] Speaker 02:
And then you're combining the additional rating.

[00:13:24] Speaker 02:
This is separate and distinct from anything else in the statute, right?

[00:13:27] Speaker 03:
I respectfully disagree, Your Honor.

[00:13:29] Speaker 03:
It's placed within 1114.

[00:13:31] Speaker 03:
which the A through J sets out the basic rates and monthly compensation, and the rest of that statute is the special monthly compensation sections.

[00:13:40] Speaker 03:
And we look at 1157, which specifically states that VA is supposed to provide for the combination of ratings and pay at the rates in subchapter two.

[00:13:50] Speaker 03:
And subchapter two is exactly where 1114 is.

[00:13:53] Speaker 03:
Now if Congress intended for VA to do something different to do, as Mr. Gazelle suggests, add up the disabilities, which they've never done, then Congress would have A, specifically stated as such, or B, perhaps put it in a different section.

[00:14:07] Speaker 02:
Well, what would they have said?

[00:14:09] Speaker 02:
I mean, if you were writing the statute and that's what you wanted to do, and let's assume that you're going to keep it in the same section, what wording would you have used to make it clear that the results sought here by Mr. Carpenter is the correct one?

[00:14:21] Speaker 03:
Something to the effect of the additional disability shall add up to 60% or greater.

[00:14:28] Speaker 04:
But what about the fact that they use the word independently rateable?

[00:14:31] Speaker 04:
I mean, under your theory, it would seem like the best way for Congress to accomplish what they wanted to accomplish would be to say if their combined rating was X or 60% or more.

[00:14:44] Speaker 04:
And that's not what they said.

[00:14:46] Speaker 03:
That's correct.

[00:14:46] Speaker 03:
That's not what they said.

[00:14:47] Speaker 03:
But that's also not what they said for subsections A through J of 1114, in which they just simply say the disabilities rate to 20% pay X amount.

[00:14:56] Speaker 03:
That's why you go to 1157, which specifically says directs VA to provide for the combination of ratings and pay at the rates among other sections 1114.

[00:15:07] Speaker 00:
Has there ever been another

[00:15:09] Speaker 00:
method used by the VA to rate multiple service-connected disabilities other than the combined ratings table?

[00:15:16] Speaker 03:
Not that I'm aware of.

[00:15:17] Speaker 00:
I couldn't find one.

[00:15:19] Speaker 03:
And that is the key point here.

[00:15:21] Speaker 03:
That is the backdrop upon which the Congress was legislating in 1960.

[00:15:26] Speaker 03:
At this point, VA had been using the combined ratings table as directed by Congress since 1925.

[00:15:31] Speaker 03:
And they had a regulation in 1950 in which they specifically stated if there's two or more service-connected disabilities, use the combined ratings table.

[00:15:39] Speaker 03:
Cannot just set that aside.

[00:15:41] Speaker 03:
And Congress knew that when they enacted the special income compensation provision.

[00:15:47] Speaker 03:
This language is clear.

[00:15:50] Speaker 03:
This plain meaning is clear and unambiguous based on that placement, based on that history.

[00:15:54] Speaker 03:
There's absolutely no support that independently rateable means add up the disabilities.

[00:16:00] Speaker 03:
VA, like we've said, never has added up additional disabilities.

[00:16:04] Speaker 03:
Never.

[00:16:05] Speaker 03:
Still hasn't.

[00:16:06] Speaker 04:
So is it your position that the statute is ambiguous and that therefore we need to defer to the VA's interpretation, or are you saying it unambiguously supports your interpretation?

[00:16:18] Speaker 03:
It unambiguously supports our position because that plain meaning, the backdrop upon which Congress was legislating, shows that Congress's clear intent was for VA to use what it always used, which is a combined ratings table.

[00:16:30] Speaker 03:
If the court finds that language is unambiguous, finds that meaning is unambiguous, then the court should defer to VA's interpretation as set forth in the regulation in which VA specifically... Did you mean ambiguous?

[00:16:41] Speaker 00:
You said unambiguous.

[00:16:42] Speaker 03:
I'm sorry.

[00:16:43] Speaker 03:
Ambiguous, yes.

[00:16:44] Speaker 03:
In that regulation, VA specifically stated that this independently rateable language means that the first criterion is separate and distinct from the second criterion.

[00:16:53] Speaker 04:
Because your first assumption is that Congress actually pays attention to what agencies are doing when they pass statutes.

[00:17:01] Speaker 04:
And there are a lot of cases that debunk that notion.

[00:17:07] Speaker 03:
That is my assumption, Your Honor.

[00:17:08] Speaker 00:
Are you basing that on Sutherland on statutory constrictions?

[00:17:13] Speaker 03:
No.

[00:17:14] Speaker 03:
There are cases that recognize that Congress, such as FDA v. Brown, is the United States Supreme Court case, that Congress is presumed to understand this regulatory backdrop, especially when the agency has been holding a consistent position throughout the years.

[00:17:33] Speaker 03:
And here they have held a consistent position for 35 years before Congress enacted subsection S in 1960.

[00:17:39] Speaker 03:
And in this case, it's especially striking because Congress only two years earlier

[00:17:44] Speaker 03:
when it placed all of the veteran statutes in Title 38 of the United States Code in 1958, again directed VA to provide for the combination of ratings and provide for the combination of ratings and pay the rates in subchapter two, which only two years later put that subsection S, and that's that issue here.

[00:18:03] Speaker 03:
So here we can feel very confident that Congress did know about the legislative and regulatory backdrop, and that's what they were legislating against.

[00:18:14] Speaker 03:
Before I ask no further questions.

[00:18:16] Speaker 03:
Thank you.

[00:18:17] Speaker 01:
It seems to me, Your Honors, that the government's position is inherently contradicted.

[00:18:30] Speaker 01:
It says that the language is unambiguous, but then it explains that to be clear, Congress would have said these are to be combined.

[00:18:41] Speaker 01:
And that's not what Congress said.

[00:18:43] Speaker 01:
what Congress said was additional disabilities independently rateable.

[00:18:48] Speaker 01:
And the meaning of that, they say is clear, but they actually put a qualification on that clarity.

[00:18:56] Speaker 01:
They said it is clear, but you have to use a specific method.

[00:19:00] Speaker 01:
But no method is required.

[00:19:03] Speaker 01:
60 is 60.

[00:19:04] Speaker 01:
20, 20, and 20 is 60.

[00:19:09] Speaker 01:
There's no method to this.

[00:19:11] Speaker 01:
You use a method

[00:19:12] Speaker 01:
for an express purpose.

[00:19:14] Speaker 01:
The express purpose is when you're determining how much compensation will be paid when that compensation payment is less than total.

[00:19:24] Speaker 00:
Do you have any legislative history in which Congress says, we're going to go outside the norm here?

[00:19:31] Speaker 01:
No, Your Honor, but this court has to look at, and the government has urged the court to find that this language is unambiguous.

[00:19:42] Speaker 01:
If the court's going to look at the unambiguity of this language, then it has to be confined to 1114 and to 1114 as one, not to import something else to create a method.

[00:19:58] Speaker 00:
That's not what the government argued.

[00:20:00] Speaker 00:
The government argued that it was unambiguous in light of realities.

[00:20:06] Speaker 00:
That's what she said.

[00:20:08] Speaker 01:
Then maybe I am overstating it.

[00:20:11] Speaker 01:
I respectfully did not hear it that way.

[00:20:14] Speaker 01:
The way that I heard it was is that it becomes unambiguous because there are these other provisions in 1155 and 1157 that use the very phrase which is absent in combination.

[00:20:30] Speaker 01:
And it is the absence of that that I believe this court, in looking at this in the context of the

[00:20:40] Speaker 01:
pro-claimant nature of what Congress was trying to do in writing these statutes to read this regulation in a way that favors beneficiaries as opposed to the way in which the government has urged that disfavors veterans, in particular Mr. Gazelle.

[00:20:57] Speaker 01:
I have nothing further unless there's further questions.

[00:20:59] Speaker 01:
Thank you.

[00:20:59] Speaker 02:
We thank both sides and the case is submitted.