[00:00:02] Speaker 02:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:08] Speaker 02:
God save the United States and this honorable court.

[00:00:13] Speaker 02:
First case for argument this morning is 20-1789 Langdon versus McDonough.

[00:00:19] Speaker 02:
Mr. Collins Chase, whenever you're ready.

[00:00:22] Speaker 04:
Thank you, Chief Judge Proce.

[00:00:23] Speaker 04:
May it please the court?

[00:00:25] Speaker 04:
The plain language of the term thoracolumbar spine infection 4.71A as well as the surrounding notes and figures and the regulatory history in the 2003 amendment all support Mr. Langdon's interpretation that the thoracolumbar spine must be treated as a unit for rating purposes.

[00:00:42] Speaker 04:
All of that is essentially undisputed on appeal.

[00:00:45] Speaker 04:
To start with the plain language, there is no real dispute about the meaning of the term thoracolumbar spine itself.

[00:00:52] Speaker 02:
Mr. Collins-Kaye.

[00:00:53] Speaker 02:
Excuse me.

[00:00:53] Speaker 02:
I'm sorry to interrupt, but we got short of time.

[00:00:58] Speaker 02:
So let me ask you maybe one or two questions.

[00:01:01] Speaker 02:
Is it correct to say that if neither the lumbar region or the thoracic region were the subject of injuries that had service connection, then would you agree that the table would not apply?

[00:01:17] Speaker 04:
I would agree with that Chief Judge Prost.

[00:01:19] Speaker 04:
The service connection element is an upstream element and you would only proceed to our argument about the proper rating if that element were satisfied by some injury to a portion of the thoracolumbar spine.

[00:01:32] Speaker 02:
Okay.

[00:01:34] Speaker 02:
It seems to me like the VA, if this were important, they could arguably fix this going forward if we accepted your position.

[00:01:44] Speaker 02:
So my question to you is, how do you think they could fix it?

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Would it be enough to issue a new rule and you cite the text of when they went out for notice and comment to mention there that this was only going to apply if both of these

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or whatever rule they want, if the two can't be separated or if only both of them are service-connected or whatever.

[00:02:09] Speaker 02:
How could they accomplish that?

[00:02:12] Speaker 04:
I guess I'll answer your question in kind of two parts, Chief Judge Prost.

[00:02:15] Speaker 04:
I think the answer to your question is yes, that VA could certainly do something to amend the rule again if it wanted to fix what it considered to be a problem with it.

[00:02:25] Speaker 04:
As to the proper fix, I guess I would say that

[00:02:29] Speaker 04:
As a matter of, you know, notice and comment rulemaking, I don't think they would be able to do something that's inconsistent with medical understanding.

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And so it would have to be consistent with what they view as the medical understanding that the thoracolumbar spine ordinarily moves as a unit.

[00:02:43] Speaker 04:
But even within that context, I think there are things that they could have done in amending the rule differently or that they could do going forward.

[00:02:52] Speaker 04:
I hesitate to suggest to the VA how to amend its own regulation, but if, for example, the pre-2003 amendment had separate diagnostic code sections for the thoracic or dorsal spine and for the lumbar spine, I think the VA could have said

[00:03:08] Speaker 04:
You know, you can't get a recovery for both if they're both independently service-connected, but if you have, you know, one or the other and we can't tell which, you could recover.

[00:03:18] Speaker 04:
They could probably add some sort of explanation to the current rule that would be consistent with medical understanding and would accomplish that purpose.

[00:03:25] Speaker 04:
I'm not quite sure how that would be written, but I think it could be fairly simple.

[00:03:29] Speaker 02:
Thank you.

[00:03:30] Speaker 02:
Sorry to take so long, but I just wanted to know that.

[00:03:33] Speaker 02:
Thank you.

[00:03:33] Speaker 02:
Please proceed.

[00:03:35] Speaker 04:
No, of course, Chief Judge Prost.

[00:03:38] Speaker 04:
Start with the plain language of the regulation.

[00:03:40] Speaker 04:
There's no real dispute here about what the term thoracolumbar spine means.

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The Secretary acknowledges that it refers collectively to the thoracic and lumbar spine segments as a single unit.

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And the Secretary also does not offer any response on the notes and figures in Section 4.71A that are the most relevant context for the regulatory language.

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Council, this is Judge Chen.

[00:04:03] Speaker 03:
Just so I want to make sure I'm clear on the language

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that I'm understanding it the way you're understanding it.

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There's no question that Mr. Langdon has an injury to his thoracic spine, correct?

[00:04:18] Speaker 03:
That's what he was examined for.

[00:04:22] Speaker 03:
But is that the same thing as having an injury to your thoracambular spine?

[00:04:30] Speaker 04:
I think that the injury to the thoracic, he has injuries to both the thoracic and lumbar spine.

[00:04:36] Speaker 04:
He's been granted service connection for the thoracic portion of the spine.

[00:04:40] Speaker 04:
Right.

[00:04:40] Speaker 03:
And so what I'm wondering is, is that term thoracic interchangeable with thoracombular for purposes of, you know, understanding how to apply the rating schedule?

[00:04:54] Speaker 04:
I don't, if I'm understanding your question correctly, Judge Chen, I don't believe it is.

[00:04:58] Speaker 04:
The thoracic spine is a segment of two segments of the thoracolumbar spine.

[00:05:02] Speaker 04:
So the thoracic spine is a certain collection of vertebrae that are higher up in the lumbar.

[00:05:10] Speaker 03:
Let me try again.

[00:05:11] Speaker 03:
Assume for the moment that the only injury Mr. Langdon ever had was to his thoracic spine and there's no lumbar spine injury.

[00:05:22] Speaker 03:
Would that injury to the thoracic spine qualify as injury to the thoracomular spine for purposes of the diagnostic code?

[00:05:33] Speaker 03:
Yes, it would, to a certain extent.

[00:05:36] Speaker 00:
OK.

[00:05:36] Speaker 00:
Mr. Collins-Chase, this is Judge Moore.

[00:05:38] Speaker 00:
Can you turn to appendix page JA249?

[00:05:43] Speaker 00:
What am I looking at?

[00:05:45] Speaker 00:
What is this document?

[00:05:49] Speaker 04:
Judge Moore, I believe this is a portion of a May 2016 exam report, medical examination report.

[00:05:56] Speaker 00:
And so under, at the top of that page, it says thorough lumbar common diagnoses.

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And then it has lumbar, it has degenerative, and it has other.

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Other is then listed as thoracic strain, thoracic DDD.

[00:06:14] Speaker 00:
Wouldn't all of that evidence suggest that a thoracic strain is a subset of thoracolumbar diagnoses given that it's listed that way in the medical report generated by the VA?

[00:06:26] Speaker 04:
I believe so, Your Honor.

[00:06:31] Speaker 04:
Examiners, in contrast to the board and the Veterans Court, seem to have recognized that you assess the medical evidence, but that at the end of the day, the diagnostic code to assess the proper rating is to measure the thoracolumbar spine as a whole.

[00:06:46] Speaker 04:
I think this is consistent with that.

[00:06:48] Speaker 04:
He has a thoracolumbar spine condition by way of thoracic strain, thoracic degenerative disc disease, et cetera.

[00:06:55] Speaker 04:
He also has the lumbar strain, and those are subsegments of the thoracolumbar spine.

[00:07:00] Speaker 04:
So he has a service-connected disability of a portion of his thoracolumbar spine.

[00:07:07] Speaker 04:
It's then undisputed that Diagnostic Code Section 5237 is the appropriate diagnostic code to apply in looking to the rating.

[00:07:14] Speaker 04:
And so, for example,

[00:07:16] Speaker 04:
in the 2009 rating decision, and this is appendix page 408, the 407 and 408,

[00:07:27] Speaker 04:
Page states that he has a mechanic thoracic spine strain post-traumatic, that's on 407.

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And then on 408, the result of that is that the evaluation is based on the forward flexion of the thoracolumbar spine as a unit.

[00:07:41] Speaker 04:
And there's nothing in the diagnostic code that would allow VA to separate out the thoracic and lumbar spine segments.

[00:07:49] Speaker 04:
I guess that's a long way to answer your question.

[00:07:52] Speaker 04:
Yes, Judge Moore, and I think that the result here is that he would be entitled to a 20% rating because he indisputably meets the requirements that are set out in that rating decision, which is full reflection less than 60 degrees of his thoracolumbar spine as a unit.

[00:08:07] Speaker 04:
I guess I'll pause just to make sure that I've answered your question.

[00:08:14] Speaker 03:
Yep.

[00:08:16] Speaker 03:
Counsel, I've got another question just so I understand.

[00:08:19] Speaker 03:
your conception of how this rating system works.

[00:08:24] Speaker 03:
Suppose, for example, a veteran suffers from a service-connected thoracic spine injury and then gets rated, say, 10% for that.

[00:08:38] Speaker 03:
And then years later, the veteran gets stabbed in the back with a knife right in the thoracic spine area and it,

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It worsens whatever condition flexibility of that thoracic spine area.

[00:08:58] Speaker 03:
Is it your view that that veteran would be able to file a new claim seeking a higher disability rating for now the much worse off condition to the thoracic spine?

[00:09:16] Speaker 04:
To answer your hypothetical Judge, recognizing that I think there are many things that could potentially in the veterans law outside of what we're discussing today, prevent the veteran from obtaining an increase.

[00:09:29] Speaker 04:
There, I think our proposed interpretation, which relates to whether this

[00:09:33] Speaker 04:
thoracic and the lumbar segment seem to be rated at the unit would not preclude a rating in that circumstance.

[00:09:40] Speaker 04:
Our facts are that it's the lumbar and the thoracic spine, but in your hypothetically as to injuries to the thoracic spine, our interpretation of the plain language would not prevent him from having a rating in that circumstance.

[00:09:53] Speaker 04:
The plain language of the regulation doesn't really

[00:09:57] Speaker 04:
exclude him under those facts.

[00:09:59] Speaker 04:
It just says that you need to, you know, eliminated the distinction between thoracic and lumbar spines in the 2003 amendment.

[00:10:06] Speaker 04:
And so there's nothing in the language of DC 5237 that would prevent him from obtaining a rating under those circumstances, although.

[00:10:13] Speaker 03:
Do you understand why from my perspective it sounds like something's not quite right if it's quite clear that a prior service-connected injury,

[00:10:27] Speaker 03:
then after service gets further aggravated by some other intervening event and then that permits an increased rating for benefits.

[00:10:45] Speaker 04:
I do understand your concern Judge Chen.

[00:10:47] Speaker 04:
I think the fact here is that

[00:10:50] Speaker 04:
There, unlike other code sections where that same concern may apply, here we have a clear piece of regulatory history in terms of the 2003 amendment eliminating the distinction that VA is drawing in this case.

[00:11:03] Speaker 03:
VA is admitting... So I guess what I'm wondering is, is this how all ratings work, all diagnostic codes work, if that a veteran can always come back to seek an increased rating for something because

[00:11:19] Speaker 03:
the condition that he got an initial rating for has become much worse off but had nothing to do with the actual time in service that has something to do with, I don't know, a bad car accident or something else that occurs many years after service.

[00:11:37] Speaker 03:
I just don't know the answer.

[00:11:38] Speaker 03:
Do you know the answer?

[00:11:40] Speaker 04:
I do just Shannon.

[00:11:42] Speaker 04:
I've heard the tone to indicate that my opening time.

[00:11:45] Speaker 02:
No, please continue.

[00:11:46] Speaker 02:
Don't worry about the time.

[00:11:47] Speaker 04:
Thank you, Chief Judge Prost.

[00:11:49] Speaker 04:
Yeah, I think that Judge Chen, I think your concern would apply to a variety of code sections and I think it might be handled differently depending on the code section.

[00:11:59] Speaker 04:
I think some explicitly account for that.

[00:12:02] Speaker 04:
There are also provisions in the veteran's law that allow examiners to take account of some of those things in exceptional cases, for example, to say that the veteran's condition would essentially reset the baseline and you would look at it from there.

[00:12:14] Speaker 04:
So I think it really does depend on the diagnostic code section.

[00:12:17] Speaker 04:
Here we're in what is certainly a rare, I think, but perhaps unique circumstance where we have this

[00:12:22] Speaker 04:
information from the 2003 amendment about how VA wanted this particular diagnostic code to be interpreted.

[00:12:29] Speaker 04:
And what VA did is it said the thoracolumbar spine ordinarily moves as a unit.

[00:12:34] Speaker 04:
We have two separate ratings under diagnostic codes for thoracic and lumbar.

[00:12:38] Speaker 04:
We're going to eliminate those.

[00:12:40] Speaker 04:
What it did not do was say

[00:12:42] Speaker 04:
Well, it's challenging but not impossible.

[00:12:44] Speaker 04:
And so, you know, make your best effort, examiner, to distinguish between the two.

[00:12:50] Speaker 04:
But if you can't do that, then we'll give the veteran the benefit of the doubt.

[00:12:54] Speaker 04:
That's the old approach.

[00:12:55] Speaker 04:
That's the pre-2003 approach where the, you know, 3.102 would say interpretive doubt.

[00:13:00] Speaker 04:
You know, if there's any reasonable doubt, rather, it would be resolved in the veteran's favor.

[00:13:04] Speaker 04:
And so, I think the important thing here is the language that VA chose.

[00:13:08] Speaker 04:
VA chose language that

[00:13:09] Speaker 04:
unambiguously and without exception eliminated the distinction that VA is drawing here.

[00:13:14] Speaker 04:
VA applies this in cases like Johnson v. Wilkie to say that veterans with two service-connected disabilities, one of thoracic and one of the lumbar spine, you only get one rating, and it ought to apply the same interpretation here because there's no textual support for having an exception to the rule.

[00:13:30] Speaker 04:
And I know I'm into my rebuttal time, so unless there are further questions, which I'd be happy to answer, I would like to reserve the rest of my time.

[00:13:36] Speaker 02:
Well, yeah, we won't take this out of your rebuttal time, but just in response to Judge Chen, it may be informative to look at the lead in language to 38 CFR 4.1, because I think that speaks to the percentage representing the diseases and injuries encountered as a result of military service.

[00:13:58] Speaker 02:
So I think that may inform Judge Chen's, the answer to Judge Chen's question.

[00:14:05] Speaker 02:
But thank you.

[00:14:06] Speaker 02:
Okay.

[00:14:07] Speaker 02:
Let's hear from the other side, government's attorney, Ms.

[00:14:12] Speaker 02:
Finnan?

[00:14:14] Speaker 01:
Yes, Your Honor.

[00:14:15] Speaker 02:
Is it Finnan or Finnan?

[00:14:17] Speaker 01:
Finnan.

[00:14:18] Speaker 02:
Finnan.

[00:14:19] Speaker 02:
Okay.

[00:14:19] Speaker 02:
Please proceed.

[00:14:21] Speaker 01:
Thank you, Your Honor.

[00:14:22] Speaker 01:
On behalf of the Secretary, we have argued that the plain language is an... Everyone agrees that we throw the same language.

[00:14:30] Speaker 01:
Plain language, though,

[00:14:32] Speaker 01:
is understood not in terms of words taken in isolation, that is to say, not looking solely at the word thorough columbar, but understanding that word as used in context.

[00:14:44] Speaker 01:
And the context in this case is that that word, thorough columbar, is used within the rating schedule at GC5237 to rate disabilities that are service connected.

[00:15:00] Speaker 01:
In this instance, a VA examiner was indisputably able to distinguish between the impairments to Mr. Langdon's lumbar spine and the impairments to his thoracic spine, so lower back versus upper back in layman's terms.

[00:15:18] Speaker 01:
Having found that only the impairment from the thoracic spine was service-connected, that was the only impairment that was appropriate

[00:15:29] Speaker 01:
for raiding of the thoracolumbar spine.

[00:15:33] Speaker 00:
Mr. Langdon has... This is Judge Moore.

[00:15:36] Speaker 00:
Is an injury to the thoracic portion of the spine a thoracolumbar injury?

[00:15:48] Speaker 00:
It is an injury to the thoracolumbar region, yes.

[00:15:53] Speaker 00:
Okay, so if you have an injury to your thoracic portion, you therefore have a thoracolumbar injury to your spine, correct?

[00:16:05] Speaker 01:
No, you have a thoracic injury and that thoracic injury is part of your thoracolumbar spine.

[00:16:15] Speaker 01:
In the same way, one might have an injury to a pinky and the pinky is part of a hand.

[00:16:24] Speaker 00:
Okay, on the appendix page that I directed opposing counsel to, page 249, the VA treats a thoracic sprain under the header of thoracolumbar diagnosis.

[00:16:40] Speaker 00:
Is that correct?

[00:16:42] Speaker 01:
Yes.

[00:16:43] Speaker 00:
Okay, so a thoracic sprain or a thoracic degenerative disease is a form of thoracolumbar diagnosis, correct?

[00:16:54] Speaker 01:
It is a diagnosis to that part of the body.

[00:17:00] Speaker 00:
Well, under the header, thorough column bar diagnoses, it is one of the listings, right?

[00:17:07] Speaker 01:
Yes.

[00:17:08] Speaker 00:
OK.

[00:17:09] Speaker 01:
So maybe it's an exercise in semantics.

[00:17:14] Speaker 01:
I'm making the distinction that I'm making because the VA examiner went on to page 249 and other related pages

[00:17:22] Speaker 01:
to distinguish having looked at the thorough columbar region as your honor points out, the VA examiner went on to look at how that thorough columbar region was impaired or if it was impaired and determined that looking at the thorough columbar region as a unit, the lumbar portion of Mr. Langdon's back was impaired but impaired

[00:17:48] Speaker 01:
due to degenerative disc disease that was less likely than not service-connected.

[00:17:54] Speaker 00:
Is it correct, counsel, that the pre-2003 version of the rating schedule separated out the thoracic and the lumbar parts?

[00:18:05] Speaker 00:
And so this case would have come out exactly the way the government is advocating now if that pre-2003 version were in effect.

[00:18:14] Speaker 01:
Is that right?

[00:18:18] Speaker 01:
It's hard to say definitively, but yes, I believe so.

[00:18:21] Speaker 00:
Okay.

[00:18:21] Speaker 00:
Well, it's separated.

[00:18:22] Speaker 00:
It's fair to say it's separated them into the two separate regions, correct?

[00:18:27] Speaker 01:
Yes, correct.

[00:18:29] Speaker 00:
And the new rating schedule doesn't separate them into two separate ratings.

[00:18:34] Speaker 00:
Is that also correct?

[00:18:38] Speaker 01:
It's the devil's in the detail.

[00:18:44] Speaker 01:
I would say that the new rating schedule

[00:18:48] Speaker 01:
I'm going to go ahead and go ahead and read it.

[00:18:57] Speaker 00:
Time out.

[00:18:58] Speaker 00:
You say permits a joint rating.

[00:19:00] Speaker 00:
What about 4.71 makes it seem optional?

[00:19:07] Speaker 00:
Is there a separate section that indicates or alternatively instead of treating the thorough columbar spine as a single unit, we can alternatively treat it as just like we used to in 2003 as the separate lumbar and thoracic regions?

[00:19:22] Speaker 00:
Is there something that I'm missing that

[00:19:26] Speaker 00:
makes it that this is the general rule, but then you can also alternatively do these exceptions.

[00:19:34] Speaker 01:
Yes.

[00:19:35] Speaker 01:
So 5237 permits a joint rating when it is clinically not possible to separate.

[00:19:46] Speaker 02:
This is Judge Prost.

[00:19:49] Speaker 02:
Didn't the amendment really... Isn't it fair to characterize the amendment as eliminating separate ratings?

[00:19:56] Speaker 02:
for thoracic and lumbar spine disabilities and therefore allowing the veteran to receive only a single rating for the thorough columbar disability?

[00:20:07] Speaker 02:
Isn't that exactly what it did and said it was doing?

[00:20:13] Speaker 01:
Yes.

[00:20:14] Speaker 01:
But in an instant, the factual record demonstrates along the lines of the Shep hypothetical that

[00:20:24] Speaker 01:
Mr. Langdon is not suffering a functional impairment from his service-connected injury of the thorough columbar spine.

[00:20:33] Speaker 01:
That is an indisputed factual finding that Mr. Langdon has accepted and never appealed.

[00:20:40] Speaker 03:
Going back to... Counsel, this is Judge Chen.

[00:20:45] Speaker 03:
I'm also very interested in trying to figure out the purpose behind this amendment in 2003.

[00:20:52] Speaker 03:
Would it be rational

[00:20:54] Speaker 03:
for the VA to conclude for itself, it's really hard to discern the degree and differences in injuries between different portions of the thoracambular spine.

[00:21:11] Speaker 03:
And so just as a policy matter, we're going to put that to the side.

[00:21:15] Speaker 03:
We're not going to try to do a deep dive investigation and all that, and we're just going to collect up

[00:21:22] Speaker 03:
all the various injuries a particular veteran has to that area of his spine, and we're just going to give that a rating.

[00:21:31] Speaker 03:
And we're not going to worry about whether there is a mix of non-service connected injuries in combination with definitely confirmed service connected injuries.

[00:21:50] Speaker 03:
Would that be a rational policy choice?

[00:21:53] Speaker 01:
No, because the VA has no statutory authority, let alone regular.

[00:22:01] Speaker 03:
But I guess part of my hypothetical is that the VA had reached a conclusion that it's really clinically difficult, super difficult to try to separate out the different impacts on flexion.

[00:22:19] Speaker 03:
And so they're just not going to worry about it and not going to go down that rabbit hole.

[00:22:24] Speaker 03:
with its medical examiners, and as a policy matter, because they have a railroad to run, they're just going to give a rating to the whole thing as a unit.

[00:22:35] Speaker 03:
Wouldn't that be a rational policy choice under the circumstances?

[00:22:41] Speaker 01:
If the medical evidence does not support differentiation, then yes.

[00:22:47] Speaker 03:
I know you're talking about it on an individual veteran level.

[00:22:50] Speaker 03:
I'm talking about it on a much more broad,

[00:22:53] Speaker 03:
agency-wide level where the agency is just trying to broadly make a policy choice and then implements that through what appears to be plain language in this regulation.

[00:23:07] Speaker 03:
And so what I'm trying to figure out is why wouldn't that be a rational policy choice if the VA has in fact reached a conclusion that it's really tricky and difficult to go down the rabbit hole of separating out

[00:23:21] Speaker 03:
the impact on flexion of the back due to this, that, and the other injury?

[00:23:28] Speaker 01:
It would be, assuming the hypothetical, be a rational policy choice to when it is clinically difficult to allow the evidence to inure to the veteran's favor, right?

[00:23:41] Speaker 01:
That would be consistent with the regulatory scheme, but it would not be consistent with the statutory authority to compensate only service-connected disabilities.

[00:23:51] Speaker 01:
to adopt a policy that was so broadly worded that even in the face of undisputed medical evidence and unappealable factual findings, that the VA would somehow nevertheless disregard evidence in front of it and say, oh, we don't care.

[00:24:16] Speaker 01:
We're going to compensate it as a unit.

[00:24:18] Speaker 01:
There's no statutory authority for that, right?

[00:24:21] Speaker 01:
That's the context that the secretary brief stresses in terms of the plain language analysis.

[00:24:30] Speaker 01:
4.71A DC5237 is part of a larger rating schedule.

[00:24:35] Speaker 01:
That rating schedule is introduced by 38 CFR 4.71A that plainly and unambiguously explains that the rating

[00:24:45] Speaker 01:
seem to follow, including DC 5237, exist to compensate service-connected disabilities.

[00:24:55] Speaker 01:
Mr. Langdon's profit interpretation would have the VA, the board, the veterans court, this court, and run the upstream first-prong element of service connection.

[00:25:09] Speaker 01:
Skip it and run it.

[00:25:13] Speaker 01:
and proceed right to a rating where he would receive disability, veteran's disability benefits for a condition and an impairment that is indisputably not service-connected.

[00:25:26] Speaker 02:
Can you point us, this is Judge Pros, can you point us to anything in the language, either when they proposed the reg, there was a federal register notice, or the language in the amendment itself that suggests, even suggests,

[00:25:43] Speaker 02:
that this combination would only apply if it's not possible to separate them?

[00:25:52] Speaker 01:
Yes, Your Honor.

[00:25:53] Speaker 01:
So the 2003 Federal Register proposed notice in advance of the final rule talks about VA's motivation for the change being that it is clinically difficult

[00:26:11] Speaker 01:
or it can be clinically difficult to rate the two portions of the back, the thoracic and the lumbar region separately.

[00:26:21] Speaker 01:
And so in aid of resolving that clinical difficulty, they were providing for a joint rating.

[00:26:31] Speaker 01:
But clinically difficult does not mean impossible and there's nothing

[00:26:35] Speaker 01:
in the history of the 2003 amendment or in the statute or regulations.

[00:26:42] Speaker 02:
So is there anything in the federal register that says when it is clinically difficult to separate them, then we're only going to use the central rating?

[00:26:53] Speaker 02:
Is there any language like that?

[00:26:54] Speaker 01:
Because I don't see any.

[00:27:00] Speaker 01:
I think it's how one just reads the language.

[00:27:02] Speaker 01:
The motivation for the change in 2003 was a recognition that in 2003 it was clinically difficult for examiners to separate impairments of the two regions.

[00:27:17] Speaker 01:
But I think the more important question is if there's any indication in any of the legislative history of the plain language that VA intended to

[00:27:29] Speaker 01:
create an extra statutory liability to veterans for injuries to the back that are not service-connected.

[00:27:39] Speaker 01:
And we would submit that to get there, you would have to read so much more into the word thorough columbar than could possibly be there in the use of a single word.

[00:27:53] Speaker 01:
And it would be improper in any event.

[00:27:56] Speaker 01:
VA has no statutory authority to decide

[00:28:00] Speaker 00:
Unilaterally, that it would pay benefits to conditions known to be not service connected so counsel if if I can't possibly read the rating schedule, the way you want me to because.

[00:28:14] Speaker 00:
It basically causes me to rewrite it and disregard the plain language.

[00:28:19] Speaker 00:
What do you suggest I do?

[00:28:20] Speaker 00:
Do you suggest I strike it down as improper, exceeding the scope of the VA's authority to have regulated?

[00:28:28] Speaker 00:
What would be the outcome under those circumstances if I believe

[00:28:33] Speaker 00:
The VA has gone off the reservation and absolutely adopted a rule that exceeds its statutory authority to do, because that's what you're telling us.

[00:28:43] Speaker 00:
You're telling us if we give this provision its plain meaning, then we are allowing the VA to exceed the statutory grant from Congress over how it can award benefits.

[00:28:54] Speaker 00:
So if you're correct about that, and you're not correct about the twisted, contorted, and gnarled statutory interpretation that you're proposing, so if I can't go with you on the gnarled interpretation you propose, but nonetheless may be open to your argument,

[00:29:11] Speaker 00:
that reading this as written exceeds the statutory authority.

[00:29:17] Speaker 00:
What do I do?

[00:29:18] Speaker 00:
Do I strike it as beyond the scope of Congress's delegated authority?

[00:29:23] Speaker 00:
And what happens if I do that and what happens in this individual case?

[00:29:30] Speaker 00:
No, you still have to answer.

[00:29:32] Speaker 00:
That didn't save you.

[00:29:32] Speaker 00:
You weren't saved by the bell.

[00:29:36] Speaker 01:
Yes, Your Honor.

[00:29:40] Speaker 01:
We believe that our interpretation is supported by the plain language.

[00:29:45] Speaker 00:
Counsel, counsel, counsel, my hypothetical made it clear that I do not agree, but moreover assume for purposes of the hypothetical that you're wrong.

[00:29:54] Speaker 00:
So if you're wrong and your interpretation is not even vaguely plausible, what do I do?

[00:30:00] Speaker 01:
Then you would reverse the decision of the Veterans Court and remand it for the Veterans Court consideration.

[00:30:11] Speaker 01:
under a statement of the law that the panel is comfortable with.

[00:30:16] Speaker 00:
Why would I remand?

[00:30:17] Speaker 00:
There is no question.

[00:30:19] Speaker 00:
No one has disputed the degree of flexion impairment in this case.

[00:30:24] Speaker 00:
If my interpretation of thoracolumbar spine includes the circumstances of the thoracic injury in this case, I don't understand why there would be a need to remand and why I wouldn't just reverse outright.

[00:30:38] Speaker 00:
There are no other issues, right, outstanding?

[00:30:48] Speaker 00:
Council?

[00:30:50] Speaker 01:
Yes, Your Honor, I'm trying to address your concern.

[00:30:57] Speaker 01:
If the panel believes that the Veterans Court erred in interpreting thorough columbar, then the Secretary would welcome the panel's articulation of the proper interpretation, and I think the parties would abide by whatever it is that the panel should find.

[00:31:17] Speaker 00:
Okay, thank you.

[00:31:21] Speaker 02:
Okay, let's hear from some rebuttal time for Mr. Collins-Chase.

[00:31:29] Speaker 04:
Thank you.

[00:31:30] Speaker 04:
Your Honor, the Secretary has identified no textual support for the Veterans Court's interpretation during the argument today.

[00:31:38] Speaker 00:
Mr. Collins, can I get you to focus on remedy for me?

[00:31:41] Speaker 00:
You know, I had some confusion here with the government at the end.

[00:31:46] Speaker 00:
If we agree that the plain language of the rating schedule is, as you've advocated, what do we do?

[00:31:52] Speaker 00:
What is the result?

[00:31:54] Speaker 00:
Do we have to

[00:31:55] Speaker 00:
Is it a remand?

[00:31:57] Speaker 00:
Is it a straight-up reversal?

[00:31:59] Speaker 00:
It seems to me there are no facts in dispute.

[00:32:03] Speaker 04:
I think that's correct, Judge Moore.

[00:32:05] Speaker 04:
It's a reverse.

[00:32:06] Speaker 04:
There is no dispute that if the VA is required to treat the thoracolumbar spine as a unit for rating purposes, Mr. Langdon has satisfied the rating criteria for a 20% rating based on the impairment of his forward flexion being less than 60.

[00:32:21] Speaker 04:
So, it would be a reverse and I think you're correct, there are no factual issues in dispute in this appeal that would require a resolution by the Veterans Court of the VA on remand.

[00:32:35] Speaker 00:
And what would, do you have any insight on what I would do if...

[00:32:40] Speaker 00:
If I agreed with the government that this rating schedule that they adopted permitted award of benefits for non-service connected injury and that therefore exceeded the scope of what Congress allowed them to do, would I, I mean, she stopped short of telling me that I should strike the rating schedule or that portion of it.

[00:33:05] Speaker 00:
as improper or inconsistent with Congress's delegated authority, the government certainly didn't argue that.

[00:33:13] Speaker 00:
I mean, what would be the result?

[00:33:14] Speaker 00:
What if they actually adopted a rating schedule that said, the heck with service connection, you get back to X, Y, and Z?

[00:33:26] Speaker 00:
That would be inconsistent with the statute as a whole.

[00:33:29] Speaker 00:
What would we do?

[00:33:32] Speaker 04:
I think that that could be inconsistent with the statute as a whole and I guess I'll just note for the record that that's not the situation here.

[00:33:40] Speaker 04:
We have a situation where there's the amendment in 2003 makes clear that the way VA is intending to implement a policy decision essentially is to say you have to have a service-connected injury to a portion of your thoracolumbar spine, but once you do,

[00:33:55] Speaker 04:
the medical evidence suggests that it moves as a whole and therefore it's not something that we're going to get into to try to parse out the respective impairments of the thoracic and lumbar segments.

[00:34:06] Speaker 04:
So, you know, I think the court wouldn't have to reach that dire of an issue in terms of having it be exceeding the authority.

[00:34:13] Speaker 04:
I think it's simply a matter of the plain meaning does not provide the exception that the VA is seeking.

[00:34:20] Speaker 00:
Because your view is the VA has

[00:34:22] Speaker 00:
the right to make a decision like this because there has to be a service-connected thoracolumbar spinal injury, which there is in a case like this.

[00:34:33] Speaker 00:
So there has to be a service-connected injury and then it's okay for the VA to say when things move as a unit and it's really, really, really hard to figure out exactly what the flexion impairment is.

[00:34:46] Speaker 00:
attributed to which portion of that part of the spine, that it's okay to treat it as a whole.

[00:34:52] Speaker 00:
And you're saying that that really isn't inconsistent with Congress's overall requirement that we're only going to award benefits for service-connected injuries, that that's an okay policy choice for the VA to make as a whole.

[00:35:05] Speaker 04:
That's correct Judge Moore.

[00:35:07] Speaker 04:
VA made the 2003 amendment fully aware of Section 4.1, which is the only real argument that the government and the Secretary has raised here is context.

[00:35:16] Speaker 04:
VA was certainly aware of that context and what it did was it made a policy decision which has several advantages to say we're no longer going to distinguish between these segments because the medical evidence suggests the spine moves as a whole.

[00:35:29] Speaker 04:
The government has put a lot of emphasis on the statement in the Federal Register that it's clinically difficult, but I think what the actual amendment language did is the most important thing.

[00:35:38] Speaker 04:
The VA didn't say, well, it's clinically difficult, so try your best.

[00:35:42] Speaker 04:
still try to separate them.

[00:35:44] Speaker 04:
It said it's clinically difficult and therefore we are, and this is a quote from the same portion of the Federal Register to Secretary's Council cited, we are, quote, excluding a separate set of criteria for the thoracic or dorsal segment of the spine.

[00:35:55] Speaker 04:
And that went on to explain that it was based on medical evidence that they moved together.

[00:35:59] Speaker 04:
And so here VA's policy choice is when we have a service-connected injury of any portion of the thoracolumbar spine,

[00:36:07] Speaker 04:
Based on medical evidence, we're not going to parse out whether it's thoracic or lumbar.

[00:36:11] Speaker 04:
We're just going to say, what is the limitation of flexion of the thoracolumbar spine as a whole?

[00:36:16] Speaker 04:
And that's a choice that the DA is certainly entitled to make consistent with the statute and the regulations and does not exceed its authority to do so.

[00:36:28] Speaker 04:
And I believe I may be past my time.

[00:36:30] Speaker 04:
I'll just note that the secretary conceded that the 2003 amendment made that

[00:36:36] Speaker 04:
has that effect and eliminates the distinction, but then argues in the same breath for what is essentially a pre-2003 application in which VA separates it out.

[00:36:43] Speaker 04:
And one of the questions was about, you know, wouldn't this come out differently under 2003?

[00:36:48] Speaker 04:
I think the approach they're using is the exact approach that you would use in 2003.

[00:36:52] Speaker 04:
And the secretary had referred to the fact that it would permit a single rating for the spine where the evidence differed

[00:36:59] Speaker 04:
That already happened.

[00:37:00] Speaker 04:
That was exactly like the Mitleider case, and that was the pre-2003 amendment.

[00:37:05] Speaker 04:
And I think that the court should give the 2003 amendment effect particularly where the reasoning for it was clear in terms of this outline in the VA's policy choice.

[00:37:14] Speaker 04:
Unless the court has any further questions, we would ask the court to reverse and allow Mr. Langdon to the rating to which he's entitled based on the limitation of his forward flexion of his brachial lumbar spine as a unit.

[00:37:27] Speaker 02:
Thank you.

[00:37:28] Speaker 02:
We thank both sides and the case is submitted.