[00:00:00] Speaker 03:
Your case is number 19-23-21, Cassiano against the United States.

[00:00:07] Speaker 03:
Mr. Perry, good morning.

[00:00:08] Speaker 03:
Please proceed.

[00:00:11] Speaker 01:
Good morning, Your Honor, and may it please the court.

[00:00:13] Speaker 01:
I'm Jason Perry representing the appellants, Ms.

[00:00:15] Speaker 01:
Cassiano and Ms.

[00:00:16] Speaker 01:
Barrett.

[00:00:18] Speaker 01:
The Public Health Service found Ms.

[00:00:19] Speaker 01:
Barrett unfit for her degenerative joint disease of both knees utilizing diagnostic code 5003.

[00:00:27] Speaker 01:
However, her knees were so disabling that while on the temporary disability retirement list, she had a total knee replacement of both knees.

[00:00:35] Speaker 01:
The minimum rating under 38 CFR 4.71A, Diagnostic Code 5055 for prosthetic knee replacement is 30%.

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The trial court found that the government argued that the UPS did not err because of various factors such as

[00:00:55] Speaker 01:
findings that her knee replacements had improved her ability to perform the duties of her civilian position, her testimony that the pain she experienced has lessened.

[00:01:05] Speaker 01:
and that the record indicated that she was healing very well with a good range of motion.

[00:01:11] Speaker 03:
Mr. Perry, what relief are you requesting for Ms.

[00:01:16] Speaker 03:
Appelant now that, as I understand the record, the disability retirement was granted?

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You're going through the arguments that, as I understand it, related to the initial opinion, initial decision to withhold the retirement?

[00:01:36] Speaker 03:
I'm sorry, Your Honor.

[00:01:38] Speaker 03:
What relief are you now asking for?

[00:01:41] Speaker 01:
I'm sorry, Ms.

[00:01:42] Speaker 01:
Barrett was not granted any retirement.

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Ms.

[00:01:45] Speaker 01:
Castellano was on the remand.

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So this is as to Ms.

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Barrett's knee condition, which she got no relief from the court below.

[00:01:53] Speaker 03:
Oh, OK.

[00:01:54] Speaker 03:
All right.

[00:01:56] Speaker 03:
OK, I had the two intermingled.

[00:02:00] Speaker 03:
So what relief are you then requesting from Ms.

[00:02:02] Speaker 03:
Barrett?

[00:02:03] Speaker 01:
A finding that her knee replacements warn at least a 30% for each knee bilaterally, which would combine to a 60% rating and permanent disability retirement.

[00:02:21] Speaker 01:
Among other reasons that the court found no error in not rating for the knee replacement is that the Medical Affairs Board

[00:02:33] Speaker 01:
explained that the records indicated that she was healing very well with good range of motion, and she did not have any current work limitations at her job.

[00:02:45] Speaker 01:
And that's from the opinion at appendix 22.

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However, 10 U.S.

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code 1222 alpha requires the services to strictly apply the VA schedule for rating disabilities, sometimes called the VAS or D, and not deviate from that schedule.

[00:03:02] Speaker 01:
The schedule requires that minimum of 30% for each knee bilaterally.

[00:03:09] Speaker 01:
There's no requirement under the regulation that a knee replacement fails to improve function or doesn't help the member.

[00:03:16] Speaker 01:
It's just a baseline black letter requirement that if you have a knee replacement for a knee disability, you'll be rated at the minimum of 30%.

[00:03:29] Speaker 01:
public health service and for the court to find an issue with no impact on her Ms.

[00:03:36] Speaker 01:
Barrett specific civilian job.

[00:03:39] Speaker 01:
Under 38 CFR section 4.1, which is part of the VA schedule binding on the public health service, I quote, the percentage ratings represent as far as can practically be determined the average impairment in earning capacity resulting from such diseases.

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Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.

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What's important here is that the VA in the schedule is talking about an average impairment.

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So it's not specific to the individual how they're impaired.

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The reason why they're in the schedule is because some will be more impaired or less impaired by a condition, but as practical as possible,

[00:04:25] Speaker 01:
The VA secretary has determined that for knee replacement, the disability rating based on the impairment is 30%.

[00:04:39] Speaker 01:
My colleague, Mr. Grimaldi, notes in his briefing that the not all conditions in the VA schedule the member has are actually unfitting.

[00:04:47] Speaker 01:
A person can have a condition, but it doesn't mean they impact their ability to perform their military duties.

[00:04:55] Speaker 01:
The problem with that argument though is that the public health service actually found her knee conditions to be disabling.

[00:05:03] Speaker 01:
So that issue is resolved because once the, again, once the condition is found unfitting, the public health service must use the VA schedule and rate her at 30%.

[00:05:21] Speaker 01:
Turning to Ms.

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Cassiano and her request for a further increase in rating, and as you know, Judge, below she received an increase of 40%.

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She's asking the court to find that the denial of an increased rating beyond that, based on separately rating each condition,

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should be error and that should be corrected and she should be re-rated.

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We note that the VA found her at 90% for all of her conditions.

[00:05:58] Speaker 03:
That's really what I found confusing.

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You're not suggesting that the award of disability retirement should be withdrawn and that this should be substituted for it?

[00:06:15] Speaker 01:
Right.

[00:06:16] Speaker 01:
Board for correction of commission core records found that she's warranted the 40% rating based on the scheduler findings for fibromyalgia.

[00:06:26] Speaker 01:
However, as we argued from the very beginning at the formal hearing before the public health service all the way through all the proceedings and we attempted to on remand that her condition should be rated separately as to the generalized anxiety disorder

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and the separation of the fibromyalgia into the most favorable finding.

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And the... Counsel, this is Judge Stoll.

[00:06:59] Speaker 02:
I just had one quick question about that.

[00:07:02] Speaker 02:
Where did you raise the issue of whether she should be separately rated for each joint below?

[00:07:08] Speaker 02:
Did you raise that issue below?

[00:07:11] Speaker 01:
Yes, Your Honor.

[00:07:15] Speaker 01:
in our brief that it came out, the issue of pyramiding didn't, and what was the basis for the denial, the local denial, basically was on the issue of pyramiding.

[00:07:32] Speaker 02:
Well, I see where the board doesn't expressly address whether Ms.

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Casiano should be separately raided for each joint.

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I don't see that in the board's decision.

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So I'm wondering whether you raised the argument.

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That's what I want to know.

[00:07:49] Speaker 02:
Originally on me, Nan.

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Specifically, I want to make sure I'm being very clear.

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I want to know if you raised the issue of whether Ms.

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Costiano should be separately rated for each joint.

[00:08:01] Speaker 01:
Initially, at the very first hearing, her formal board, so to speak,

[00:08:09] Speaker 01:
We raised the issue of we asked for a rating separately for the fibromyalgia and separately for the generalized anxiety disorder.

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On appeal to the Board for Correction after remand from the trial court to the Board for Correction of Commission Core Records, we requested and we submitted a copy of the VA ratings and asked them to consider that.

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And as you can see from our addendum to the reply brief, the Board for Correction of

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Commission Core Records declined to consider that additional argument or the additional evidence of the VA rating her separately in that manner that we're urging.

[00:08:51] Speaker 02:
The manner in which you're urging, which is?

[00:08:55] Speaker 01:
Just as the VA did, to rate the fibromyalgia at each orthopedic condition separately,

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and then as to the generalized anxiety disorder.

[00:09:07] Speaker 01:
So they're all features of the fibromyalgia.

[00:09:11] Speaker 01:
However, just as the VA did in the decision that's submitted, that's at our addendum 10, VA stated, we have separately evaluated your condition affecting your musculoskeletal system, and this results in a greater benefit.

[00:09:30] Speaker 01:
And then they break out, your left knee, right knee, right foot, left foot, neck.

[00:09:33] Speaker 02:
Council, hang on.

[00:09:34] Speaker 02:
I'm sorry.

[00:09:34] Speaker 02:
I'm going to interrupt you.

[00:09:35] Speaker 02:
Where are you?

[00:09:36] Speaker 02:
I think you're pointing me to a particular place in the record.

[00:09:40] Speaker 02:
Could you tell me where you're identifying?

[00:09:42] Speaker 01:
Appellant's reply brief, the addendum 10.

[00:09:52] Speaker 01:
Okay.

[00:09:54] Speaker 01:
And if you see, Lana, there's a box there, the first large box, the very last bullet there, breaks out that the VA decided to consider her fibromyalgia.

[00:10:05] Speaker 01:
They rated her at 0% because a higher evaluation would result in the 40% that the schedule for fibromyalgia directly

[00:10:16] Speaker 01:
would award.

[00:10:18] Speaker 01:
So it's advantageous to separate the diagnosed disabilities for the higher evaluation.

[00:10:22] Speaker 01:
That's the proper approach the VA used in interpreting its own regulation.

[00:10:28] Speaker 02:
So it's the last bullet point in that box that you're referring to that you think shows that you made the argument to the board that each joint should be rated separately?

[00:10:40] Speaker 02:
Yes, Your Honor.

[00:10:42] Speaker 02:
Okay, thank you.

[00:10:48] Speaker 01:
So the, and again the import of that, let's go over the same ground, but that shows that the, that this was not pyramiding because that's how the VA actually dealt with this condition.

[00:11:06] Speaker 01:
And one of the points we raised that, another reason why it's not pyramiding is we're not asking to be compensated twice for the same disability, we're asking for each

[00:11:17] Speaker 01:
feature symptomology that does not overlap to be separately rated, which is not pyramiding.

[00:11:25] Speaker 01:
The... Excuse me, Your Honor.

[00:11:36] Speaker 01:
This issue of pyramiding, again, came up for the first time after oral argument on our briefs for

[00:11:46] Speaker 01:
supplemental briefing after oral argument.

[00:11:49] Speaker 01:
And the, you know, again, the VA ratings showed that it's not terminating because of the way that the VA actually approached the issue.

[00:12:04] Speaker 01:
The, and just to be clear, they rated, the VA rated their fibromyalgia at zero and then rated the left knee, right knee

[00:12:15] Speaker 01:
right foot, left foot, and neck conditions separately.

[00:12:19] Speaker 01:
The generalized anxiety disorder at 50% by itself.

[00:12:32] Speaker 01:
As far as the travel pay, we note that the problem with the issue of not-rightness that the court below used at Appendix 17

[00:12:45] Speaker 01:
denied the claim, is that there was no claim for reimbursement.

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However, as we explained, the process doesn't allow for that at all.

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They simply rely on the Commission Core Personnel Manual 47 for the proposition that there's no authority in which to grant that.

[00:13:09] Speaker 01:
However, there is authority, as we've argued, under the

[00:13:14] Speaker 01:
joint federal travel regulation, as well as 37 U.S.

[00:13:19] Speaker 01:
Code 452.

[00:13:21] Speaker 01:
So the first point is that there is actually authority for that.

[00:13:27] Speaker 01:
The next issue here is that the government argues that it's not official travel because the members are not on orders.

[00:13:34] Speaker 01:
But that's, again, the same circular problem.

[00:13:36] Speaker 01:
They don't get orders, and so the claim is denied.

[00:13:41] Speaker 01:
But there's no way to get that if they are entitled to it just because of the simple denial.

[00:13:47] Speaker 05:
Mr. Perry?

[00:13:49] Speaker 05:
Your Honor?

[00:13:50] Speaker 05:
This is Judge Lynn.

[00:13:52] Speaker 05:
Did your client submit a request, a claim for travel?

[00:14:00] Speaker 01:
It did not, Your Honor.

[00:14:01] Speaker 01:
When Ms.

[00:14:03] Speaker 01:
Barrett did not actually travel.

[00:14:05] Speaker 01:
So it really applies more to Ms.

[00:14:07] Speaker 01:
Cacciano.

[00:14:08] Speaker 01:
When I appeared with her at the board, we inquired about that, and again, we were told there's no process, you're not going to get it.

[00:14:15] Speaker 01:
So it's that procedural error in not having the process to do it makes it impossible for her to actually do it.

[00:14:21] Speaker 01:
And if she's entitled to it, she should be able to receive those monies.

[00:14:30] Speaker 05:
But she never filed a claim.

[00:14:34] Speaker 01:
She's unable to because there's no process, Your Honor, but that's correct, yes.

[00:14:37] Speaker 03:
Well, just to be clear, I'm still troubled by trying to figure out the relief you're requesting.

[00:14:43] Speaker 03:
For Ms.

[00:14:44] Speaker 03:
Barrett, you're requesting travel reimbursement even though she didn't travel.

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And for Ms.

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Castellano, that is the only relief that's now being requested?

[00:14:57] Speaker 01:
After the temporary duty travel.

[00:14:59] Speaker 01:
Yes, Your Honor, she requests that.

[00:15:01] Speaker 01:
reimbursement for it.

[00:15:03] Speaker 01:
It would require the issuance because the government's correct that there does need to be an order.

[00:15:06] Speaker 01:
However, if an order should issue, then it's possible to go back now and retroactively submit that and receive those monies.

[00:15:19] Speaker 03:
All right.

[00:15:20] Speaker 03:
I think we're ready to hear from the other side.

[00:15:23] Speaker 03:
Any more questions at the moment from the panel?

[00:15:26] Speaker 06:
No.

[00:15:27] Speaker 06:
Thank you.

[00:15:28] Speaker 03:
Okay.

[00:15:28] Speaker 03:
Then Mr. Grimaldi.

[00:15:30] Speaker 04:
Good morning, Your Honors.

[00:15:32] Speaker 04:
May it please the Court.

[00:15:33] Speaker 04:
Your Honors, Ms.

[00:15:34] Speaker 04:
Costiano and Ms.

[00:15:35] Speaker 04:
Barrett served honorably in the Commissioned Corps until their respective disabilities rendered them unfit for continued service.

[00:15:43] Speaker 04:
The record shows that the Commissioned Corps provided Ms.

[00:15:46] Speaker 04:
Barrett with a disability rating that was commensurate with a disability that rendered her unfit, and Ms.

[00:15:54] Speaker 04:
Costiano the same following the rematch.

[00:15:57] Speaker 04:
Ms.

[00:15:58] Speaker 04:
Barrett received over $200,000 in separation pay, and Ms.

[00:16:02] Speaker 04:
Cassiano, who originally received about the same amount, is now having that converted into a disability retirement.

[00:16:11] Speaker 04:
Through this argument, through the appeal, plaintiff's appellants are not only questioning the individualized ratings they received, but the disabilities that rendered them unfit.

[00:16:21] Speaker 04:
And this can really be seen in the argument today regarding Ms.

[00:16:25] Speaker 04:
Barrett's condition.

[00:16:28] Speaker 04:
The argument that is being presented is that her knee replacement surgery rendered her unfit for service and then must be rated and provided a disability rating based upon that.

[00:16:41] Speaker 04:
Going back to the statute here, Your Honor, because this is not a VA benefits case, we are not looking about whether or not these individuals have a condition service connected to their service that is impacting their employment in the civilian side.

[00:16:58] Speaker 04:
We are looking at 10 USC 1201, which is the disability retirement statute that says that this rating here, what they get, what the Army is doing here for retirement is checking to see whether the individual is unfit to perform because of a physical disability.

[00:17:19] Speaker 04:
That is what is rated.

[00:17:21] Speaker 04:
If you look, Your Honors, at appendix page 4011, this is the disability manual for the Commissioned Corps.

[00:17:27] Speaker 04:
Again, we're looking and rating what rendered the individual unfit.

[00:17:32] Speaker 04:
It specifically requests a cause and effect between the disability and the finding of unfitness.

[00:17:40] Speaker 04:
In Ms.

[00:17:40] Speaker 04:
Barrett's case, in 2009, she reported experiencing degenerative knee problems.

[00:17:48] Speaker 04:
In 2011, this was brought before a medical evaluation board and a medical review board.

[00:17:54] Speaker 04:
At that point, she had not had surgery.

[00:17:57] Speaker 04:
She was placed on temporary disability because of a knee degeneration problem, and this is Appendix Page 542.

[00:18:05] Speaker 04:
The next we can see is in Appendix Page 551, and this is the second time she's before a review board.

[00:18:13] Speaker 04:
Again, we're talking about needing surgery, not having surgery yet.

[00:18:17] Speaker 04:
Again, she's found to be temporarily disabled.

[00:18:22] Speaker 04:
On Appendix Page 591, she's had her left knee surgery

[00:18:26] Speaker 04:
in October 2013 and that she's looking forward to getting a right surgery because it will help with the pain that she's experiencing.

[00:18:37] Speaker 04:
So what we're seeing here, Your Honors, and all the evidence that the record shows is that the condition that rendered her unfit to serve as a nurse in the commission corps was degenerative knee disease.

[00:18:49] Speaker 04:
The knee surgery was meant to ameliorate that.

[00:18:52] Speaker 04:
It was a fix.

[00:18:55] Speaker 04:
And as the lower court went through the evidence, it did that.

[00:18:58] Speaker 04:
It helped her.

[00:18:59] Speaker 04:
But not enough that she could be deployed internationally and so on and so forth.

[00:19:03] Speaker 04:
So she was wanted unfit because of the degenerative knee disease, not because of the knee surgery.

[00:19:10] Speaker 04:
Accordingly, the commission court properly gave her a rating for that degenerative knee disease and a separation based upon it.

[00:19:23] Speaker 04:
I would note that on this argument, Plaintiff Appellant state that I think it was a misspoken here, but it's 10 U.S.C.

[00:19:30] Speaker 04:
1216A says that the uniformed services must strictly apply the ratings from the Vassar.

[00:19:37] Speaker 04:
That is not true.

[00:19:38] Speaker 04:
It says to the extent feasible in Section A. So there is no strict applying of the Vassar requirement in the statute.

[00:19:48] Speaker 04:
Turning to Ms.

[00:19:49] Speaker 04:
Castellano, Your Honors.

[00:19:51] Speaker 04:
I think there's some confusion here as to what relief Ms.

[00:19:56] Speaker 04:
Cassiano is looking for in terms of her disability, not the travel pay, I'll get to that in a moment, but the relief that she is seeking.

[00:20:04] Speaker 04:
What she is seeking is a 0% rating for fibromyalgia and a rating for the symptoms instead.

[00:20:13] Speaker 04:
That is anti-pyramid, that is a pyramid problem.

[00:20:18] Speaker 04:
Because what that is indicating is that she has fibromyalgia.

[00:20:23] Speaker 04:
We're going to rate it zero and then we're going to rate her symptoms.

[00:20:26] Speaker 04:
Is it overlapping?

[00:20:27] Speaker 04:
Yes.

[00:20:28] Speaker 04:
Anxiety is under fibromyalgia.

[00:20:30] Speaker 04:
So giving her a rating of anxiety alone and also saying she has fibromyalgia, he is saying that she has overlapping symptoms there.

[00:20:48] Speaker 04:
In regards to the VA materials that were provided in the reply brief and the question of whether or not the joint pain for Ms.

[00:20:59] Speaker 04:
Castellana was raised to the Commission Core, the record shows that it was not originally raised to the Commission Core.

[00:21:05] Speaker 04:
It was raised for the first time by the provision of the VA materials on remand after the United States had already received judgment on the record on the anti-pyramiding issue.

[00:21:15] Speaker 04:
So the issue of,

[00:21:18] Speaker 04:
Whether or not Ms.

[00:21:19] Speaker 04:
Cassiano could receive separate ratings for her joint pain was not before the Commissioned Corps at the time of her remand.

[00:21:27] Speaker 04:
So we do not believe that this issue had been raised, I guess, to the Commissioned Corps in the first instance, only the issue of anxiety.

[00:21:33] Speaker 04:
But still, the Court of Federal Claims did address that.

[00:21:38] Speaker 04:
If Your Honors have no further questions about the disability ratings themselves, I can turn to the travel pay.

[00:21:48] Speaker 04:
and state briefly that we understand their argument to be that it's sort of circular here, that there is no way to ask for travel pay because the commission court doesn't pay for it.

[00:22:05] Speaker 04:
Well, Your Honor, the commission court doesn't pay for it because it is not temporary duty travel.

[00:22:10] Speaker 04:
There's no order provided for these offices to attend the M.A.D.

[00:22:14] Speaker 04:
because the M.A.D.

[00:22:15] Speaker 04:
is not mandatory.

[00:22:17] Speaker 04:
To the extent that Plains of Appellants are arguing that the Commissioned Court errs by not providing orders for its officers to attend the MAB, they must point to some sort of statute or regulation that requires it, and they simply haven't done that.

[00:22:36] Speaker 04:
If the Court has no further questions, we respectfully request that the Court affirm the decision of the Court of Federal Claims.

[00:22:41] Speaker 03:
Any more questions for Mr. Granaldi?

[00:22:44] Speaker 06:
No, thank you.

[00:22:45] Speaker 03:
No, thank you.

[00:22:47] Speaker 03:
Thank you.

[00:22:48] Speaker 03:
Thank you.

[00:22:49] Speaker 03:
Mr. Perry, have you rebuttal time?

[00:22:51] Speaker 00:
Judge Newman, this is Jennifer.

[00:22:53] Speaker 00:
I'm sorry to interrupt.

[00:22:54] Speaker 00:
Mr. Perry doesn't have any rebuttal time left, so I just wanted to see how much time I should put.

[00:22:59] Speaker 03:
No, give him his full rebuttal time.

[00:23:01] Speaker 00:
Okay, thank you.

[00:23:03] Speaker 01:
Thank you, Your Honor.

[00:23:05] Speaker 01:
Addressing the point about temporary duty, we want to draw the court's attention to the appellee's brief addendum, page 8, where it describes temporary duty

[00:23:14] Speaker 01:
And at section two, it says, temporary duty defined as that period spent at a location while processing for separation from the service, release from active duty, placement on the temporary disability retirement list or retirement.

[00:23:30] Speaker 01:
At page nine of the same addendum, temporary duty travel is travel to one or more places away from a permanent duty station to perform duties for a period of time

[00:23:40] Speaker 01:
and upon completion of assignment, return or proceed to a permanent duty station.

[00:23:45] Speaker 01:
So by the appellee's own brief and addendum, the travel to the formal board by the appellant is actually shown to be temporary duty.

[00:24:01] Speaker 01:
Turning briefly to the issue of the pyramiding

[00:24:10] Speaker 01:
whether or not, again, by rating the condition separately, it is pyramiding.

[00:24:16] Speaker 01:
We note that under 38 CFR 4.7 is a higher of two evaluations, which requires the VA and, by reference, and I thank my brother, Grimaldi, for pointing out 10 U.S.

[00:24:30] Speaker 01:
Code 1216 as a proper site.

[00:24:35] Speaker 01:
The issue is what generates the higher rating?

[00:24:38] Speaker 01:
And so using that methodology and by application of 4.7, you end up with the separate rating of each condition in the same manner that the VA performed.

[00:24:51] Speaker 01:
And if there's any more questions, I'm happy to answer, and if not, we tender the case.

[00:24:59] Speaker 03:
Any more questions from the panel?

[00:25:03] Speaker 01:
No, thank you.

[00:25:04] Speaker 03:
Okay, thank you.

[00:25:06] Speaker 03:
Thanks to counsel for both sides.

[00:25:08] Speaker 03:
The case is taken under submission.