[00:00:42] Speaker 03:
Okay, the next argued case is number 181535, Scott against Wilkie.

[00:00:49] Speaker 03:
Ms.

[00:00:49] Speaker 03:
Holt.

[00:00:54] Speaker 00:
Thank you, Your Honors.

[00:00:55] Speaker 00:
May it please the Court?

[00:00:57] Speaker 00:
Legal errors in this case by the Board and by the Veterans Court wrongly capped Mr. Scott's disability rating at 50%, rather than the 60 or 70% that he may have been entitled to.

[00:01:10] Speaker 00:
VA regulations and the law of the Veterans Court requires that when, as here, a veteran suffers from both listed and unlisted diagnoses of the foot, ratings under 5284 for foot injuries other must be considered.

[00:01:24] Speaker 00:
In this case, the error began when the board discarded that code as not applicable in the present case, and it was continued when the Veterans Court failed to correct that legal error and remand for a proper determination under the proper legal framework.

[00:01:37] Speaker 04:
What is the putting aside your argument that for chennery like reasons, the Veterans Court erred in making a couple of fact findings itself to supply a missing rationale, putting that completely to one side.

[00:01:54] Speaker 04:
What's the legal error that the Veterans Court committed in not correcting what you say is a legal error of the board?

[00:02:03] Speaker 00:
The legal error was the failure of that Veterans Court to follow its own prior precedent as in Yancey and its failure to follow a rule of law.

[00:02:11] Speaker 00:
This court is held in cases like Garden versus Shinseki and Harris versus Shinseki that the failure of the Veterans Court to follow a rule of law itself presents a legal question.

[00:02:20] Speaker 00:
And in fact, if the Veterans Court fails to follow its own precedent, that constitutes a legal error that will require a man.

[00:02:26] Speaker 00:
So this case is on all fours with cases previously in which this court has evaluated the question

[00:02:32] Speaker 00:
of whether a veteran's court is properly following its own law.

[00:02:34] Speaker 00:
That's a legal question that's squarely presented in within this court's jurisdiction.

[00:02:38] Speaker 04:
And that principle of law that you think the veteran's court failed to follow is the principle that you derive from Yancey and then the follow-on cases of Yancey to the effect that when there is a different condition not previously considered, one way or the other, the board has to consider it, either to say,

[00:03:01] Speaker 04:
same symptomatology and therefore doesn't add anything or something else?

[00:03:08] Speaker 00:
That's the rule, yes.

[00:03:09] Speaker 00:
That's the rule of law that the Veterans Court failed to follow in this case.

[00:03:12] Speaker 00:
It's not just the rule that's announced in Yancey.

[00:03:14] Speaker 00:
It's of course pursuant just generally to VA regulations that the agency has an obligation to consider all potentially applicable regulations and then provide the highest possible rating that more nearly approximates the veteran's disability picture.

[00:03:27] Speaker 00:
So in this case,

[00:03:28] Speaker 00:
When there is not a rating, a diagnostic code that specifically aligns with the service connected disability, it is the obligation of the board to consider what other diagnostic codes are more applicable to that veteran's disability.

[00:03:40] Speaker 00:
And Yancey applied that rule in the context of the ratings of disabilities to the foot.

[00:03:44] Speaker 00:
So Yancey's an application in the specific context of foot disabilities that the board does have an obligation to consider whether ratings under 5284 are appropriate.

[00:03:57] Speaker 00:
And with respect to that legal rule, Judge Toronto, I don't think there's a dispute here.

[00:04:01] Speaker 04:
And you ground that in 4.7?

[00:04:03] Speaker 04:
4.7.

[00:04:05] Speaker 00:
And in general, the regulations that provide that the secretaries has enumerated this diagnostic code schedule is to use that schedule to guide their determinations with respect to disability compensation.

[00:04:19] Speaker 00:
And I don't think there's a dispute here.

[00:04:20] Speaker 00:
The secretary doesn't dispute that that is the rule that governs this case, that when a veteran has undiagnosed conditions,

[00:04:27] Speaker 00:
ratings under 5284 must be considered.

[00:04:29] Speaker 00:
But that's precisely what the board failed to do in this case.

[00:04:32] Speaker 00:
And that's where the legal error arose.

[00:04:35] Speaker 00:
In the board's decision in this case, that appendix 26 is the only place where the board addressed 5284.

[00:04:42] Speaker 00:
And there the board was clear in its statement.

[00:04:45] Speaker 00:
It had the mistaken belief, based on a misunderstanding of Copeland, that simply because one of Mr. Scott's disabilities is listed in the diagnostic code, ratings under 52,

[00:04:55] Speaker 00:
84 were not available.

[00:04:58] Speaker 00:
That was an error of law.

[00:04:59] Speaker 00:
Copeland does not address a scenario like here where a veteran presents with both listed and unlisted disabilities.

[00:05:05] Speaker 00:
And it was that legal error that led the board down the wrong path and artificially kept the board at the ratings that are available in 5276.

[00:05:13] Speaker 00:
I don't think there's a dispute from the secretary that had 5284 been considered, Mr. Scott in this case may have received a higher compensation of 60 or 70%.

[00:05:24] Speaker 00:
And so by artificially tying his hands at 5276, the board essentially cut its analysis short and didn't give Mr. Scott the consideration that he was due under all potentially applicable ratings.

[00:05:35] Speaker 04:
I think, I'm not sure if I remember this right, but I think that the government argues, but in any case I'd like you to suppose I were to argue or posit.

[00:05:46] Speaker 04:
that what the Veterans Court did here was, in fact, to interpret the crucial paragraph in the board's opinion, the carryover from 26 to 27, as really, even though it didn't refer to the planter fibrosis, as though it is, fibromas, as covering that.

[00:06:06] Speaker 04:
And would that interpretation of the board decision be a matter that we couldn't review?

[00:06:12] Speaker 04:
And if that interpretation were therefore

[00:06:15] Speaker 04:
to be accepted, then is there a legal error?

[00:06:19] Speaker 00:
So I think the interpretation by the Veterans Courts of the board's decision, that would be within this court's jurisdiction to review as a legal matter.

[00:06:29] Speaker 00:
If that, because it falls within the basic dictates of administrative law, that a court on review cannot sort of look behind and make up a rationale for an agency decision that doesn't exist.

[00:06:40] Speaker 04:
So in that sense... Well, let me just try to be very specific.

[00:06:43] Speaker 04:
So at the top of 27, Appendix 27, the paragraph that carries over 26 to 27 ends with a sentence, in any case, all of his symptomatology is being compensated for in the increased evaluation provided under 5276.

[00:06:58] Speaker 04:
It is... You suggest, with I think a lot of plausibility, that that actually refers only to the flat feet of pest plenus.

[00:07:09] Speaker 04:
But maybe it doesn't.

[00:07:11] Speaker 04:
And if it doesn't, then the Veterans Court maybe could interpret that to include the other disabilities or injuries that the board itself referred to earlier, including the plantar fibromas.

[00:07:28] Speaker 04:
Why is that a beyond the bounds or even, for us, reviewable interpretation of the board decision?

[00:07:36] Speaker 00:
I think there's two points to that.

[00:07:38] Speaker 00:
Firstly, the fundamental problem with this paragraph is not whether it's concerning symptomatology owing to the fibromas or to the flat foot.

[00:07:47] Speaker 00:
The fundamental problem with this sentence is that even if this sentence considers the fibromas, it's still not discharging the board's legal obligation, which is that considering the symptomatology alone and compensating for it is not enough.

[00:08:02] Speaker 00:
The agency has an obligation

[00:08:04] Speaker 00:
to consider that symptomatology under all potentially applicable codes.

[00:08:09] Speaker 00:
And in here, in this case, by cutting 5284 out of the analysis, the symptomatology was only aligned with codes that went as high as 50%.

[00:08:19] Speaker 00:
The board has an obligation to look at that symptomatology and compare it to codes that may be applicable and go higher, in this case 5284, 60 or 70%.

[00:08:30] Speaker 00:
With respect to Your Honor's question regarding the legal question of interpretation of the sentence, again, I think I would refer back to the basic principle that it's true that this court cannot review the factual findings of the board or the application of a lot of fact.

[00:08:44] Speaker 00:
But this court certainly can always review the question of whether there's been a chennery violation.

[00:08:49] Speaker 00:
And that's the fundamental problem here, is that the Veterans Court, in reviewing this board decision, read so much into this board decision that is inappropriate.

[00:08:57] Speaker 00:
You cannot discern it from this board's decision.

[00:09:00] Speaker 00:
And that's the problem that the Veterans Court committed in this case.

[00:09:02] Speaker 00:
And that is a legal question, Your Honor, that's within this Court's jurisdiction.

[00:09:10] Speaker 00:
Now, as to those rationales that the Veterans Court employed, I think it's clear that those are based on back findings that are present in the Veterans Court decision.

[00:09:18] Speaker 00:
And I can take them in turn.

[00:09:21] Speaker 00:
The first rationale by the Veterans Court was that the board's analysis here was permissible under the rule against pyramiding.

[00:09:29] Speaker 00:
But that is patently not present in the board's decision.

[00:09:33] Speaker 00:
There is nothing in the board's decision that discusses the rule against pyramiding, that cites to section 4.14, that undertakes an analysis of whether the disabilities here are the same or different, whether there's a single or multiple disabilities, or whether the symptomatology from the various diagnoses overlap.

[00:09:51] Speaker 00:
There's simply nothing in the board's decision to support that kind of conclusion that the Veterans Court drew.

[00:09:57] Speaker 00:
And the Veterans Court has been clear in prior cases, for example, in Fanning versus Brown, that if the board is going to rely on a rationale of pyramiding, it must do so explicitly with citation to applicable regulations.

[00:10:10] Speaker 00:
That would be section 4.14.

[00:10:12] Speaker 00:
And that is nowhere to be found in the board's decision.

[00:10:16] Speaker 04:
Does the terminology of symptomatology

[00:10:21] Speaker 04:
pretty much automatically equate to the terminology of manifestations in 4.14?

[00:10:28] Speaker 00:
So 4.14 uses manifestations and disabilities.

[00:10:32] Speaker 00:
And this court has referred to symptomatologies in Amberman.

[00:10:35] Speaker 00:
I think there's some overlapping between those different labels that have been used.

[00:10:42] Speaker 00:
I think the crux of the analysis all goes back to the definition of a disability, which is the degree of functional impairment, as this court recently held in Saunders v. Wilkie.

[00:10:51] Speaker 00:
what we're really looking at here is the degree of functional impairment.

[00:10:55] Speaker 00:
And in this case, the board considered the symptoms, did not assign them to either or attribute them to either or one or the other of the disabilities, and instead just lumped them all in properly under 5276 without considering whether some or any of them were better rated under 5284.

[00:11:12] Speaker 00:
Whether that's a symptom or a manifestation, that's the analysis that it failed to do.

[00:11:19] Speaker 00:
With respect to the second rationale by the Veterans Court, which is that the board appropriately selected 5276 over 5284, again, that is a finding that is not supported by board findings.

[00:11:31] Speaker 00:
In fact, to the contrary, the board was explicit and expressed in its statement that it was not considering 5284.

[00:11:38] Speaker 00:
In that case, it undertook no analysis of whether the criteria of 5284, severe, moderately severe, or moderate, for example,

[00:11:47] Speaker 00:
was a better fit for Mr. Scott's entire disability picture than the criteria 5276.

[00:11:51] Speaker 00:
There could not have been a selection in this case, Your Honor, because the board looked only to one code.

[00:11:57] Speaker 00:
The Veterans Court's finding that the board somehow made a selection between 5276 and 5284 cannot be squared with the board's expressed statement at Appendix 26 that it was not considering 5284 in the present case.

[00:12:16] Speaker 00:
To address briefly the secretary's arguments regarding various of the statements in the board's decision, we've explained in our reply brief why the statements, the secretary's brief at pages 18 and 19 are not sufficient to discharge the board's obligation.

[00:12:30] Speaker 00:
For example, the veteran points to statements at appendix 26 where the board states that 5276 provides a better approximation for the veteran's disability picture.

[00:12:42] Speaker 00:
Again, these statements are made

[00:12:44] Speaker 00:
in the context of having already rejected DC 5284.

[00:12:49] Speaker 00:
So to state that the 50% rating of 5276 provides a better approximation as opposed to the 30% rating of 5276 does not speak at all to whether the ratings of 5284 might in fact be the best approximation for his disability pictures.

[00:13:07] Speaker 00:
So those statements, Your Honor, just don't address the question.

[00:13:12] Speaker 04:
What do you mean by the best reflect sentence coming in the context of already having rejected 5284?

[00:13:23] Speaker 00:
So on Appendix Page 26, thank you, Your Honor.

[00:13:25] Speaker 00:
That paragraph is above the paragraph where the board rejects 5284.

[00:13:31] Speaker 00:
But in that paragraph on Appendix 26, the middle paragraph on that page, what the board is discussing in this case is a 50% rating under 5276.

[00:13:42] Speaker 00:
And the criteria that are being discussed in that paragraph are the criteria that are listed under code 5276.

[00:13:49] Speaker 00:
There's no statement or acknowledgement or recognition of the criteria 5284 in this case.

[00:13:55] Speaker 00:
And I think we have to read that paragraph together with the paragraph that comes below where the board states 50% rating is the maximum rating assignable.

[00:14:04] Speaker 00:
I think that's a plain statement by the board that it had only been looking at code 5276 and hadn't considered

[00:14:11] Speaker 00:
Code 5284.

[00:14:12] Speaker 00:
I am into my rebuttal time.

[00:14:14] Speaker 00:
I'm happy to answer any further questions if not.

[00:14:18] Speaker 02:
Thank you.

[00:14:18] Speaker 02:
Thank you.

[00:14:23] Speaker 02:
Ms.

[00:14:24] Speaker 02:
Moses?

[00:14:25] Speaker 01:
Good morning, Your Honors, and may it please the Court?

[00:14:29] Speaker 01:
Excuse me.

[00:14:30] Speaker 01:
I do agree that the key page here for the Court's review is Appendix Page 27, which

[00:14:39] Speaker 01:
in which the board made a fact, I'm sorry?

[00:14:42] Speaker 01:
With a little bit on 26.

[00:14:44] Speaker 01:
And a little bit on 26 in some of the preceding pages as well.

[00:14:48] Speaker 01:
But key here is the board's factual finding that all of Mr. Scott's symptomatology is being compensated for in the increased evaluation provided under Diagnostic Code 5276.

[00:15:02] Speaker 01:
And what the veterans, what VA is required to do

[00:15:09] Speaker 01:
under the regulatory scheme under part four of 38 CFR is to look at the symptoms that are being presented by however many.

[00:15:19] Speaker 04:
I guess my difficulty with that is that by the time I get to that in any case sentence, that paragraph sure seems to be only about flat feet.

[00:15:32] Speaker 01:
It's important to note, Your Honor, that the fibromas have been part of Mr. Scott's disability picture

[00:15:39] Speaker 01:
dating all the way back to his military service.

[00:15:43] Speaker 01:
And even when he requested an increased rating from 30% to 50%, the fibromas had been considered long ago.

[00:15:52] Speaker 01:
This is not a new symptom that arose.

[00:15:54] Speaker 01:
And most importantly, there are no symptoms that are distinct from the symptoms that he experiences as it relates to the pest planets.

[00:16:04] Speaker 01:
Where did the board find that?

[00:16:08] Speaker 04:
Sure, you are not going to... There is... And I gather Ms.

[00:16:13] Speaker 04:
Holt has a, I think as I understand it, a two-part argument.

[00:16:16] Speaker 04:
One, the board didn't find that.

[00:16:17] Speaker 04:
And second, even if it were to have found that, the legal requirement is that the board consider the higher of two possible provisions.

[00:16:33] Speaker 04:
Diagnostic, yes.

[00:16:34] Speaker 04:
5276 or 5284, and it didn't do that either.

[00:16:38] Speaker 01:
Right.

[00:16:39] Speaker 01:
Maybe I've misunderstood.

[00:16:40] Speaker 01:
Well, just to first answer your honest question about where it is in the record that fibromas have been part of the medical history since service.

[00:16:50] Speaker 01:
I'm understanding your honest question.

[00:16:52] Speaker 04:
No, no, no, no, no.

[00:16:53] Speaker 04:
Where did the board find that there are no incremental symptoms from the fibromas over and above the symptoms from the other foot conditions, most importantly, the foot?

[00:17:05] Speaker 01:
Oh, OK.

[00:17:05] Speaker 01:
I understand your honest question.

[00:17:07] Speaker 01:
There is no explicit finding that the fibromas have symptoms that are distinct and separate from the pest plant.

[00:17:17] Speaker 01:
What can be reasonably gleaned from reading pages, appendix pages 22 to 27, is that the symptomatology is indistinguishable.

[00:17:28] Speaker 01:
He experiences pain, which is specifically provided for in Diagnostic Code 5276.

[00:17:35] Speaker 01:
Tender plantar surfaces explicitly provided for in Diagnostic Code 5276, that the use of orthotics does not improve his condition explicitly provided for in Diagnostic Code 5276.

[00:17:52] Speaker 01:
And he has a listed service-connected disability, pes planus, which is what 5276 is for.

[00:18:01] Speaker 01:
If you look at Diagnostic Code 5284,

[00:18:06] Speaker 01:
which is included at 38 CFR 4.71A.

[00:18:11] Speaker 01:
There's no criteria there.

[00:18:14] Speaker 01:
All it does is list the severity of an other foot injury.

[00:18:20] Speaker 03:
But this is different from PES plan.

[00:18:22] Speaker 03:
So when the board or the Veterans Court says that 50% is the maximum from the schedule, maximum scheduler disability, and we have this additional

[00:18:35] Speaker 03:
disability, which apparently arose later.

[00:18:38] Speaker 03:
Why shouldn't it be considered separately?

[00:18:42] Speaker 01:
And Your Honor, that's why I made the point earlier that this did not, the fibromas did not arise some time later.

[00:18:52] Speaker 01:
It's always been part of his service-connected disability under Pest Planus.

[00:18:58] Speaker 03:
And when Mr. From the beginning, the fibrona was analyzed and detected.

[00:19:04] Speaker 03:
with the initial Pesplanis claim?

[00:19:06] Speaker 03:
Yes.

[00:19:06] Speaker 03:
I didn't see that argument presented.

[00:19:09] Speaker 03:
I thought it was a later manifestation, which was traced back to service.

[00:19:18] Speaker 03:
So there's no question of service connection.

[00:19:20] Speaker 01:
Right.

[00:19:21] Speaker 01:
No question of service connection.

[00:19:22] Speaker 01:
But this history of fibromas have been present for many, many years.

[00:19:27] Speaker 01:
It's just not something that was raised on appeal to the board.

[00:19:33] Speaker 01:
When Mr. Scott filed his appeal with the board, he specifically, it's at page Appendix 36, his request to the board was that his Pest Planus with Hallett's valgus deformity deserved an increased rating greater than 30%.

[00:19:55] Speaker 01:
There was, and then on pages, Appendix Pages 38 to 39,

[00:20:01] Speaker 01:
Again, he references only the pest plant, because that's a service-connected disability for which he has been granted 30% at the time.

[00:20:10] Speaker 01:
And he mentions only Diagnostic Code 5276.

[00:20:15] Speaker 01:
There is no mention that I have this new symptom or I have symptoms that can be disassociated from the pest plant.

[00:20:25] Speaker 01:
The pest plant involves the arch of the foot, a flattening of the arch of the foot.

[00:20:29] Speaker 01:
The fibromas are in that exact same anatomical location, the arch of the foot.

[00:20:36] Speaker 01:
So the symptoms that are being manifested by those disabilities are the pain, the tender plantar surfaces, and also that the use of orthotics do not assist or help with those conditions.

[00:20:55] Speaker 01:
These conditions are specifically provided for in Diagnostic Code 5276.

[00:21:01] Speaker 01:
And while there are instances in which if a veteran, for example, has some sort of unlisted condition under 4.20 and 38 CFR, the VA may look to some sort of analogous rating.

[00:21:16] Speaker 01:
There was no need to here because every single symptom he has.

[00:21:19] Speaker 03:
Aren't they listed separately in the schedule?

[00:21:23] Speaker 03:
Not that any problem with your feet here in 50% maximum, but there's the pest planus with a 50% maximum.

[00:21:33] Speaker 03:
And you could have without having pest planus, could have a fibroma, a painful result, also service-connected.

[00:21:43] Speaker 03:
That seems to be what the record shows, that these disabilities, I'll call them,

[00:21:52] Speaker 03:
are different.

[00:21:54] Speaker 03:
As a result, your feet hurt.

[00:21:56] Speaker 03:
Oh, I see.

[00:21:57] Speaker 03:
But nonetheless, the 50% is ascribed to Pest Planus.

[00:22:00] Speaker 03:
Is it not due to any combined contribution?

[00:22:05] Speaker 01:
The 5276 accounts for the entire disability picture.

[00:22:10] Speaker 01:
That's the factual finding that the board made.

[00:22:13] Speaker 01:
It does not relate specifically or only to the Pest Planus.

[00:22:18] Speaker 01:
The last question.

[00:22:20] Speaker 01:
is for the VA to look at the entire disability picture, to look at all of the symptomatology and try to match the symptoms that the veteran is presenting with the diagnostic code that best corresponds or correlates with the symptomatology.

[00:22:38] Speaker 04:
Ms.

[00:22:38] Speaker 04:
Walton agrees with that, namely that as a statement of what the board was required to do.

[00:22:43] Speaker 04:
I think she disputes that it did it.

[00:22:46] Speaker 01:
The factual findings, Your Honor, that's exactly what the board did.

[00:22:50] Speaker 01:
It's at all, not some, not just for pest planets.

[00:22:54] Speaker 01:
All of his symptomatology is being compensated for in the increased evaluation.

[00:23:00] Speaker 01:
Not only that, but at appendix page 26, the board finds that the predominant symptoms appear to be pain that increases with the use and mark pronation of both feet.

[00:23:12] Speaker 01:
The record also clearly shows that his condition is only minimally improved with the use of orthotics.

[00:23:19] Speaker 01:
And it also says, and this is in second paragraph, excuse me, if you skip down a couple of lines, a disability picture comparable to that of extreme tenderness of plantar surfaces.

[00:23:34] Speaker 01:
And finally, given the chronic progressive nature and symptomatology of the disability at issue,

[00:23:42] Speaker 01:
The board finds that a 50% rating under 5276 best reflects the disability picture shown.

[00:23:49] Speaker 01:
And all of the paragraphs that precede that, they mention Fibromas.

[00:23:53] Speaker 01:
They discuss his lengthy medical history.

[00:23:56] Speaker 01:
It's a very comprehensive discussion here about all of his symptoms, not just the symptoms that relate to the pest planus, but all of the symptoms that relate to that anatomical location of the foot, which is, for Mr. Scott, would be the arches of his feet.

[00:24:12] Speaker 01:
So it was entirely reasonable for the board to rate Mr. Scott under 5276 and certainly not resort to 5284, which doesn't list any of the symptoms that he presents for a disability rating here.

[00:24:34] Speaker 04:
And I'm not sure whether you've already discussed this, but I think earlier I

[00:24:38] Speaker 04:
at least summarize what was in my mind about the two points Ms.

[00:24:42] Speaker 04:
Oak was making, one that the board really didn't adequately address one of the conditions, even to determine satisfactorily whether the symptomatology was the same.

[00:24:53] Speaker 04:
But I take it she has a second point that even if one assumes that there is overlapping symptomatology, that the board didn't adequately consider

[00:25:08] Speaker 04:
which of the possible diagnostic codes provided the maximum, or which one was appropriate under the regulations telling the board how to proceed?

[00:25:23] Speaker 01:
Well, the board did, in fact, address that head on by concluding that all of the symptoms, again, not just the ones related to pes planus, not even just ones related to fibromas,

[00:25:38] Speaker 01:
are all contemplated explicitly under diagnostic code 5276.

[00:25:43] Speaker 01:
And to look to 5284, in fact, would have been unreasonable because what Copeland does say at 336 is that if a condition is listed in the schedule, then the VA must use that rating.

[00:26:03] Speaker 01:
And otherwise, it would essentially result in an impermissible

[00:26:08] Speaker 01:
rating by analogy.

[00:26:10] Speaker 01:
Everything that Mr. Scott, all of the symptoms that are presented are explicitly contemplated for in diagnostic code 5276.

[00:26:19] Speaker 01:
And that is what the board is saying.

[00:26:22] Speaker 04:
Maybe you can clarify this for me.

[00:26:24] Speaker 04:
Copeland.

[00:26:25] Speaker 04:
So it's one thing to say that a condition that is specifically in 5276 shall not be considered under 5284.

[00:26:37] Speaker 04:
That's Copeland.

[00:26:39] Speaker 04:
Suppose you say there is a condition that's not in 5276.

[00:26:43] Speaker 04:
The symptomatology is the same as the one that's in 5276.

[00:26:47] Speaker 04:
At that point, does the board have to consider whether 5276 necessarily applies or maybe 5284 applies?

[00:26:57] Speaker 04:
Because we're no longer in the realm of all the conditions we have identified are squarely covered by a non-5284 code provision.

[00:27:07] Speaker 01:
Well, what Amberman

[00:27:09] Speaker 01:
What this court said in Amberman is that it's the overall disability picture that's relevant, not the name of the disorder.

[00:27:16] Speaker 01:
So yes, while fibromas is not listed in the diagnostic, in the ratings, what the VA did, which it should do, as it is instructed by part four of 38 CFR, is to look at the symptomatology.

[00:27:36] Speaker 01:
And when you have a one-for-one match for every single symptom that the veteran possesses, that's the appropriate route to take.

[00:27:45] Speaker 01:
And that is what we believe Portland requires.

[00:27:48] Speaker 01:
And it makes sense.

[00:27:50] Speaker 01:
Why look elsewhere when you have a rating that one-for-one matches each and every symptom?

[00:27:57] Speaker 01:
And looking at the overall disability picture, it encompasses everything that the veteran has presented in terms of symptomatology.

[00:28:06] Speaker 01:
And again, fibromas have been part of the disability picture from the beginning.

[00:28:11] Speaker 01:
It's not anything new.

[00:28:12] Speaker 01:
And when he requested an increased rating, what he has not done, and what is important, is that he has not set apart any symptoms that should be rated under 5284, or really given the board any reason.

[00:28:29] Speaker 01:
And the medical evidence doesn't show any reason why it should resort or would look

[00:28:34] Speaker 01:
to a different diagnostic code that doesn't contemplate the symptomatology presented.

[00:28:42] Speaker 01:
And with respect to Mr. Scott's argument that there has been a machinery violation, what the Veterans Court did here with respect to addressing the 4.14 Pyramid rule is to really respond to Mr. Scott's argument that he's entitled to this additional separate

[00:29:04] Speaker 01:
rating and to explain.

[00:29:07] Speaker 01:
This is why you're ultimately by law that you wouldn't be entitled to this because 4.14 says that if you have overlapping or duplicative symptomatology, the VA cannot give you a rating under both diagnostic codes.

[00:29:23] Speaker 01:
That is not permitted.

[00:29:26] Speaker 01:
So it is not a substitution for the board's rationale or findings.

[00:29:32] Speaker 01:
It's just to respond to his

[00:29:34] Speaker 01:
argument that somehow he could get possibly a rating under both diagnostic codes.

[00:29:42] Speaker 01:
I see that my time is up if the court doesn't have any more questions.

[00:29:47] Speaker 03:
I think we're okay.

[00:29:47] Speaker 03:
Thank you, Ms.

[00:29:48] Speaker 03:
Moses.

[00:29:49] Speaker 03:
Thank you.

[00:29:54] Speaker 02:
Ms.

[00:29:54] Speaker 02:
Holt.

[00:29:56] Speaker 00:
Just a few quick points, Your Honors.

[00:29:58] Speaker 00:
First, with respect to Judge Toronto's question about where is the finding

[00:30:03] Speaker 00:
as to whether the symptoms in this case are owing to one or the other.

[00:30:09] Speaker 00:
Of the two conditions, there is none.

[00:30:11] Speaker 00:
That is the problem.

[00:30:12] Speaker 00:
There is no finding by the board as to whether the symptoms are owing to his fibromas or his pest plainness or whether they overlap.

[00:30:20] Speaker 00:
That's the problem, and that's why the Veterans Court's pyramiding rationale is not correct.

[00:30:25] Speaker 00:
With respect to the counsel for the secretary's argument that there's a one-for-one correlation of the symptoms in this case and 5276,

[00:30:33] Speaker 00:
Respectfully, Your Honors, that's not correct.

[00:30:35] Speaker 00:
The board observed multiple different symptoms that Mr. Scott is experiencing throughout pages 23 through 27 of the brief, including numbing, tingling, constant throbbing pain.

[00:30:49] Speaker 00:
None of those are listed in the criteria 5276.

[00:30:52] Speaker 00:
So respectfully, I do not think there is a one-to-one match with respect to the medical evidence in 5276 here.

[00:31:02] Speaker 00:
With respect to the statement about whether all symptoms are enough at the top of appendix page 27, again, there are two reasons.

[00:31:09] Speaker 00:
That statement is inadequate, which is that it's not clear.

[00:31:12] Speaker 00:
The agency hasn't explained whether that statement is accepting and considering the fibromas.

[00:31:19] Speaker 00:
More importantly, even if it were, the board has an obligation to consider the highest appropriate rating and simply recognizing the symptoms under code 5276, which caps out at 50%

[00:31:30] Speaker 00:
doesn't discharge the board's obligation to look at other potentially applicable codes.

[00:31:37] Speaker 00:
And with that, Your Honors, if you have no further questions.

[00:31:42] Speaker 03:
Thank you.

[00:31:42] Speaker 03:
Thank you.

[00:31:43] Speaker 03:
Thank you both.

[00:31:44] Speaker 03:
The case is taken under submission.

[00:31:46] Speaker 03:
And that concludes our arguments.