[00:00:00] Speaker 02:
The argument this morning is 181087, Page versus Gorky.

[00:01:00] Speaker 04:
Thank you, Your Honor.

[00:01:12] Speaker 04:
May it please the Court?

[00:01:14] Speaker 04:
I'm here on behalf of Mr. Page, Mr. Barry Page, and I wanted to talk about, kind of to supplement my brief a little bit, that there was a

[00:01:29] Speaker 04:
and informed the court that there was a recent case from this court that come out after the briefing was done.

[00:01:38] Speaker 04:
That case was Saunders v. Wilkie, S-A-U-N-D-E-R-S, W-I-L-K-I-E.

[00:01:46] Speaker 04:
The docket number is 2017-1466 from this court, and it was decided April the 3rd, 2018.

[00:02:00] Speaker 04:
That case addressed, really, what's at issue in this case.

[00:02:06] Speaker 02:
Just so I'm clear, I don't call it off the top of my head.

[00:02:09] Speaker 02:
Was that a presidential opinion or a non-presidential?

[00:02:11] Speaker 04:
It was a presidential opinion.

[00:02:14] Speaker 01:
OK.

[00:02:14] Speaker 01:
It was a presidential opinion.

[00:02:15] Speaker 01:
Mr. Jogue, why do we have jurisdiction over this appeal?

[00:02:19] Speaker 01:
Isn't it fact-based?

[00:02:23] Speaker 04:
What the court said in Saunders was that

[00:02:30] Speaker 01:
But whether there's a separate diagnosis of chronic fatigue separate from the cancer treatment, that's a question of fact.

[00:02:40] Speaker 04:
Well, what the court held in Saunders, they had this very similar issue in Saunders.

[00:02:47] Speaker 04:
And in that particular context, it was a lady who complained of knee pain, but there was no separate underlying condition.

[00:03:01] Speaker 04:
Just like in this case, both the board and the Court of Appeals of Veterans Claims held, well, she doesn't have a disability as a matter of law.

[00:03:10] Speaker 04:
And what the court in Saunders said was that because you're dealing with what is the definition of a disability under the law, then that makes it a legal question, which would give this court jurisdiction.

[00:03:29] Speaker 04:
We also think that on the merits of the case, on the merits of the case, the Saunders case, held that the definition of disability does not acquire a diagnosis.

[00:03:50] Speaker 04:
Instead what they said what was necessary was to demonstrate

[00:03:57] Speaker 04:
What they said the focus under 38 USC 1155 was the focus was on loss of earning capacity.

[00:04:04] Speaker 04:
And that's what the purpose of the veterans law of the veterans compensation statutes is designed to compensate the veteran for.

[00:04:12] Speaker 04:
And in this case, it is undisputed from the medical evidence and also from the findings of the court of the board and of the Court of Appeals of Veterans claims that Mr. Page's chronic fatigue

[00:04:26] Speaker 04:
weaknesses enough to prevent him from working and that's an undisputed fact.

[00:04:31] Speaker 04:
So what we think is that in light of the, particularly in light of the Saunders case, is that the board and what the board and the Court of Appeals of Veterans Claims actually did decide, which is that Mr. Page doesn't have a separate compensable disability, but otherwise he would meet the requirements and if the

[00:04:56] Speaker 04:
And if Saunders requires the Veterans Court to consider loss of earning capacity, then clearly that's a legal error.

[00:05:09] Speaker 04:
The Court of Appeals of Veterans claim did not apply the correct legal standard.

[00:05:14] Speaker 02:
I'm a little bit at a disadvantage because I don't recall off the top of my head the Saunders case.

[00:05:19] Speaker 02:
But dealing with this case,

[00:05:22] Speaker 02:
You say, I think one of your arguments is that the Court of Veterans Claims construed your argument incorrectly.

[00:05:29] Speaker 02:
Like you were not saying you need to be compensated as kind of a separate category.

[00:05:34] Speaker 02:
This is an add on to a consequence of the surgery, et cetera.

[00:05:41] Speaker 04:
One of my arguments was that the Court of Appeals of Veterans Claims and the board construed the claim solely in the context of whether or not the

[00:05:50] Speaker 04:
Mr. Page had chronic fatigue syndrome, which the medical examiner found that he did not have chronic fatigue syndrome, but instead that they should have been, but what the medical evidence ended up did say was that he does have fatigue, chronic fatigue and weakness that is related to the radiation treatment and that it's enough to prevent... But that claim, your client is currently getting 100% on that, right?

[00:06:20] Speaker 04:
That's correct.

[00:06:21] Speaker 04:
That's correct.

[00:06:22] Speaker 02:
Okay.

[00:06:22] Speaker 02:
So, and there's been some sort of proposal to decrease that, but that hasn't happened to date, right?

[00:06:30] Speaker 02:
I know you requested a hearing on some proposal.

[00:06:34] Speaker 04:
Well, in fact, I will inform the court that the regional office just very recently just issued a rating decision keeping it at a hundred percent.

[00:06:44] Speaker 04:
Of course that would not be in the record, that was maybe decided a couple weeks ago from the regional office.

[00:06:50] Speaker 02:
So I guess just to kind of get to the point, what's the gripe here?

[00:06:55] Speaker 02:
I mean, until or unless your client's disability rating is decreased, you've got what

[00:07:06] Speaker 02:
what you're seeking, kind of on the basis of what you're seeking.

[00:07:10] Speaker 04:
Well, of course, I mean, there are elements to where you can certainly get higher than 100% based upon aid and attendance and special monthly compensation issues that the more disabilities that you have, the more you could use that as a step.

[00:07:32] Speaker 04:
higher for special monthly compensation purposes.

[00:07:35] Speaker 04:
So what are you seeking in our case?

[00:07:39] Speaker 04:
Well, I'm seeking essentially that I believe that the fatigue and weakness is not contemplated within the ratings for that and that the law then requires you to give the highest ratings possible.

[00:08:01] Speaker 01:
You mean more than 100%?

[00:08:05] Speaker 04:
Well, like I said, Your Honor, the more disabilities that you end up that you have, the more you could use those disabilities as stepping stones for higher levels of special monthly compensation so that does affect, so that could affect the compensation payable on that basis.

[00:08:25] Speaker 00:
Okay, I'm trying to pull this apart a little bit.

[00:08:28] Speaker 00:
The claim

[00:08:30] Speaker 00:
that was originally filed that gave rise to this appeal was a claim that said chronic fatigue syndrome.

[00:08:37] Speaker 04:
That's correct.

[00:08:38] Speaker 00:
And then the briefing in this case to the board and to the Veterans Court seemed to be talking about fatigue, severe fatigue, which was a secondary condition due to all the chemotherapy due to the service-connected lung cancer.

[00:08:54] Speaker 04:
That's correct.

[00:08:55] Speaker 00:
Right?

[00:08:56] Speaker 00:
But then the lung cancer service-connected disability rating has been at 100%.

[00:09:02] Speaker 04:
That's correct.

[00:09:03] Speaker 00:
And although there were proposals to move it down off of 100%, it's been brought up to 100%.

[00:09:11] Speaker 00:
And now you're telling me that the VA has confirmed it's going to keep it at 100%.

[00:09:16] Speaker 04:
That's correct.

[00:09:16] Speaker 04:
That's correct.

[00:09:17] Speaker 04:
I said, yes, they just recently just decided that in the last couple of weeks.

[00:09:22] Speaker 00:
And so you wanted a hearing that the VA had not properly given you.

[00:09:27] Speaker 00:
And so I guess we were wondering and waiting to see whether in fact you were going to get that hearing.

[00:09:33] Speaker 00:
But it turns out that the VA chose not to hold the hearing because it chose to give Mr. Page everything that he requested, which is 100%.

[00:09:44] Speaker 00:
On his lung cancer, that's correct.

[00:09:45] Speaker 00:
On his lung cancer.

[00:09:46] Speaker 00:
Yes, yes.

[00:09:47] Speaker 00:
And so now you're asking for to get recovery on something separate and apart from the lung cancer.

[00:09:57] Speaker 04:
That's correct.

[00:09:57] Speaker 00:
Or fatigue.

[00:09:59] Speaker 00:
That's correct.

[00:09:59] Speaker 00:
But not chronic fatigue syndrome.

[00:10:01] Speaker 04:
That's correct.

[00:10:02] Speaker 00:
Okay, so is there, I don't know, a diagnostic code or something for

[00:10:09] Speaker 00:
something that is related to fatigue that is not chronic fatigue syndrome, nor something that is connected to treatment that was due to the service-connected lung cancer?

[00:10:21] Speaker 04:
Well, I think that the... Well, first of all is that if there's no specific diagnostic code,

[00:10:28] Speaker 04:
And you're supposed to use analogous ratings, and there are analogous ratings that you could use, such as like to rate fatigue, such as like for chronic fatigue syndrome, even though that's not what it is.

[00:10:43] Speaker 04:
But they certainly do have the authority to use analogous ratings, and that's what they would have to use in this particular case.

[00:10:57] Speaker 02:
So just to clarify a piece of what Judge Chen was asking about, this proposal to decrease the 100% to 30%, which has now been tossed aside, what was the basis for that?

[00:11:10] Speaker 04:
The basis for that is that under the rating schedule for residuals of lung cancer, Mr. Page had required outpatient oxygen therapy.

[00:11:22] Speaker 04:
And so under the rating schedule for residuals of lung cancer, that would entitle him to 100% rating.

[00:11:34] Speaker 04:
Is there any more questions for this court?

[00:11:36] Speaker 02:
No, why don't we hear from government while we serve the remand.

[00:11:39] Speaker 02:
OK, thanks.

[00:11:46] Speaker 05:
Good morning.

[00:11:46] Speaker 05:
May it please the court?

[00:11:49] Speaker 05:
The processes available to Mr. Page

[00:11:53] Speaker 05:
administrative processes available to him.

[00:11:54] Speaker 05:
He's availed himself of, and they've worked.

[00:11:57] Speaker 05:
He's had medical exams.

[00:11:59] Speaker 05:
He's had ratings assigned.

[00:12:00] Speaker 05:
He's challenged ratings when they've gone down.

[00:12:02] Speaker 05:
They've gone back up again.

[00:12:04] Speaker 02:
Well, what about this world of the consequences of his fatigue related to his cancer in the surgery?

[00:12:13] Speaker 05:
Yes, Your Honor.

[00:12:14] Speaker 05:
The fatigue has always been present in the medical exams and a part of the ratings that are attached to the lung cancer.

[00:12:21] Speaker 05:
It's part of

[00:12:22] Speaker 05:
the disability from the treatment is residual.

[00:12:25] Speaker 02:
That stuff is covered in the 100, possibly 30, now back to 100.

[00:12:30] Speaker 02:
That's correct, Your Honor.

[00:12:33] Speaker 02:
Is there a record that sort of talks about that as being included, a record on that kind of disability designation that includes fatigue, et cetera?

[00:12:45] Speaker 05:
Your Honor, in the appendix, both the supplemental appendix and the appendix that Mr. Page filed,

[00:12:50] Speaker 05:
In the medical report, you can see findings on fatigue when examining Mr. Page for the ratings that came in 2014, 2015.

[00:12:59] Speaker 02:
So is it the government's position that what he is seeking here, or what he's saying he's really seeking here, and the Court of Federal Veterans Claims misunderstood, is what he's already being compensated for in the 100% disability?

[00:13:13] Speaker 05:
I think that's correct, Your Honor.

[00:13:16] Speaker 05:
As Judge Chen noted, the claim here originally presented itself as a claim for chronic fatigue syndrome.

[00:13:23] Speaker 05:
The symptomology didn't support a diagnosis of chronic fatigue syndrome, but persistent fatigue was noted as an element of residual to his treatment.

[00:13:34] Speaker 05:
And in the briefing, it switched from chronic fatigue syndrome now to this notion of persistent fatigue, which is a set of symptoms.

[00:13:42] Speaker 05:
And as we noted in our brief, symptom-like fatigability

[00:13:46] Speaker 05:
It can't be carted from silo to silo of disability rating to support multiple ratings.

[00:13:52] Speaker 05:
It's a part of the analysis of the effects of the lung cancer and of the treatment.

[00:13:57] Speaker 05:
It's part of what makes it debilitating is that fatigue.

[00:14:02] Speaker 02:
We have all kinds of different cases here, and they kind of overlap and get confusing when you're talking about silos.

[00:14:07] Speaker 02:
So we've got a TDIU silo, right?

[00:14:11] Speaker 02:
How does that play into it?

[00:14:13] Speaker 02:
If it had been alleged or whatever,

[00:14:15] Speaker 02:
We have jurisdiction, which we likely would not.

[00:14:17] Speaker 02:
But if he claims I'm not employable because of the excessive fatigue or whatever, isn't there a possibility of getting something more than 100% in those circumstances?

[00:14:29] Speaker 05:
And I think to give the court an update on where he stands now, there is a TDIU finding and it's connected to, he has a PTSD rating of 70% right now.

[00:14:41] Speaker 05:
He has a lung cancer rating at 100%.

[00:14:43] Speaker 05:
It's because the lung cancer went back into active status.

[00:14:46] Speaker 05:
That happened recently, February 2018, I think, is when that rating came.

[00:14:51] Speaker 05:
He has a 60% rating for a skin condition, a 60% rating for arteriosclerosis.

[00:14:58] Speaker 05:
He's also receiving special monthly compensation.

[00:15:00] Speaker 01:
He doesn't get 100 plus 60 plus 60 plus 30.

[00:15:02] Speaker 05:
No, he does not, Your Honor.

[00:15:04] Speaker 05:
However, and you can see from the record, when there was that time in 2015 where

[00:15:10] Speaker 05:
the rating went from 100 to 30 because he was post-treatment and that was the recommendation.

[00:15:16] Speaker 05:
But in fact, it only dropped to 90 because there were other diagnoses and other disabilities that added to that 30 and kept it at 90 for that brief period.

[00:15:25] Speaker 02:
But if he's arguing, you were telling us about TDIU.

[00:15:28] Speaker 02:
So if he's arguing for TDIU, has that been adjudicated specifically that that's a separate kind of claim, right?

[00:15:35] Speaker 05:
Yes, I believe that he has TDIU right now.

[00:15:37] Speaker 05:
He also has

[00:15:39] Speaker 05:
special monthly compensation at the aid and attendance rate.

[00:15:43] Speaker 05:
He has three active claims in the administrative processes seeking a higher rate of special monthly compensation.

[00:15:51] Speaker 05:
An earlier date, there's also this issue of a potential spine injury.

[00:15:56] Speaker 01:
Is TDIU equivalent to 100%?

[00:15:58] Speaker 01:
In other words, total?

[00:16:01] Speaker 05:
Yes, he has total disability right now.

[00:16:03] Speaker 01:
Total equals 100%?

[00:16:05] Speaker 05:
Yes.

[00:16:06] Speaker 02:
I thought that maybe it was more something else.

[00:16:08] Speaker 05:
Well, I think the special monthly compensation he gets on the TDIU, he gets a little bit more, I think, than 100%.

[00:16:17] Speaker 05:
I mean, it's come up in this case.

[00:16:18] Speaker 05:
His counsel might know better exactly what he is receiving right now.

[00:16:22] Speaker 01:
They're not equivalent terms.

[00:16:24] Speaker 01:
No.

[00:16:25] Speaker 01:
The terms, TDIU is a term of art.

[00:16:29] Speaker 05:
Right.

[00:16:30] Speaker 05:
Total disability for individual unemployment, yeah.

[00:16:33] Speaker 02:
Do you want to speak to the Sanders case or the Saunders case?

[00:16:37] Speaker 05:
I'm not familiar with it and from the description of it about definition of disability, I think that the issue here and the record here points exclusively to factual issues and examinations and how this was rated by the doctors who examine him and then taking those examinations and assigning the ratings.

[00:17:02] Speaker 05:
It's not about defining a new disability of persistent fatigue, which it seems to be where its briefs are headed towards.

[00:17:08] Speaker 05:
There's no basis to do that.

[00:17:10] Speaker 05:
And this court doesn't have jurisdiction to invent new rating systems or alter the ratings that exist.

[00:17:19] Speaker 05:
Fatigue, as we stated in the brief, is a symptomology that can align with numerous disabilities or maladies, but it can only align with one when assigning

[00:17:32] Speaker 05:
a rating, and that's what happened here.

[00:17:34] Speaker 05:
He did not present with chronic fatigue syndrome.

[00:17:37] Speaker 05:
The fatigue was accounted for in the assessment of his cancer, and he's receiving everything that he can receive right now.

[00:17:44] Speaker 05:
And if that changes, as I mentioned at the outset, with the processes that are available to him, the venue for dealing with that is through those processes.

[00:17:55] Speaker 05:
He can challenge a rating.

[00:17:56] Speaker 05:
If his fatigue remains, but he gets better on the lung cancer,

[00:18:00] Speaker 05:
that can be addressed.

[00:18:02] Speaker 05:
That is all remains available.

[00:18:04] Speaker 00:
Is it your view that to the extent Mr. Page's briefing is seeking recovery for fatigue that stems from the treatment for his service-connected lung cancer, that that issue, that challenge has been mooted by the fact that he's now getting a 100% confirmed, 100% disability reading for lung cancer?

[00:18:31] Speaker 05:
It's interesting because I've spent some time thinking about it.

[00:18:34] Speaker 05:
I think there's a mootness and potentially even a ripeness issue because if there's a change in the way his condition is presenting itself in terms of the cancer and the fatigue, then it will take a new diagnosis, a new examination to try to see to what extent the fatigue remains, if other things have

[00:18:55] Speaker 02:
Well, I don't think it was a rightness argument, too, but that was only because I thought the 30% thing was pending.

[00:19:02] Speaker 02:
There's no appeal, right?

[00:19:04] Speaker 02:
I mean, whatever your friend said has been done in terms of the RO affirming the 100%, there's no further adjudication.

[00:19:12] Speaker 05:
His disease went back into active status, and so he's at 100%.

[00:19:15] Speaker 05:
And that supersedes what had happened before.

[00:19:19] Speaker 05:
And if it goes down after treatment, because there are specific protocols, you can see it from the record from what happened before.

[00:19:25] Speaker 05:
post-treatment of certain time periods, there'll be re-evaluations, and that 100% may go down if hopefully he gets better.

[00:19:34] Speaker 02:
And at that point... But you're telling us that that rating includes... accounts for the fatigue associated with... That's correct, Ron.

[00:19:42] Speaker 05:
It's the fatigue that's residual to the treatment.

[00:19:48] Speaker 05:
There are no further questions.

[00:19:49] Speaker 05:
Thank you.

[00:19:55] Speaker 04:
I wanted to correct first of all is under 4.97 I think it's 4.97 which is the how do you rate residual lung cancer doesn't talk about fatigue or weakness all it all it does is it is it measures your your lung capacity and then depend upon the percentage

[00:20:22] Speaker 04:
that they have, and that's what the basis of your rating, or unless you can get it 100% if you have pulmonary hypertension, core pulmonal, which is kind of a heart issue, or require outpatient therapy, but it really doesn't talk about fatigue and weakness.

[00:20:42] Speaker 04:
And also, whenever he, the initial recommendation for the decrease was based

[00:20:52] Speaker 04:
solely upon how he performed on a lung function test.

[00:20:56] Speaker 04:
The examinations where they talked about fatigue and weakness were not examinations pursuant to a reevaluation for the lung cancer, but were instead conducted pursuant to the claim that we filed for fatigue.

[00:21:13] Speaker 04:
So I wish to correct that.

[00:21:16] Speaker 04:
Does the court have any more questions for me?

[00:21:19] Speaker 03:
Thank you.

[00:21:21] Speaker 03:
All rise.

[00:21:23] Speaker 04:
The Honorable Court is adjourned until tomorrow morning at 10 o'clock a.m.