Legal Case Summary

Right arguments, and obviously to be accepted, that's necessary to the context of this argument that's possible. But everything you said in the other piece will look like these things. Thank you, Dr. Anand. And I do intend to do that. In fact, I'm going to sort of pick up and try to change date here, although I will say I'll render that. There's a type of, many of these responses applied to cases, as I tried in the case in the earlier case. In this case, the same thing. That would be best for us to try and append it here. Switch to controls to appendix. Many of the issues are exactly the same, just in a different setting. There are some new ones, instead of moving into the point. Whatever we discussed earlier, we would sort of be considering this thing. But one of the things that we are discussing is this concern about while I'm going to tell them everything that we do that. And Mr. Bachelors, this is basically an 8-7-3

. And I'm going to use your choice cases that they print 5. How does your condition has gotten a little more than just tell us how your condition has gotten worse? It actually identifies the types of evidence that are needed, like doctors, reports, lay statements, things like that. And they also invite the individual in for an examination under the statute of regulations. Examinations are as required. And as both of these individuals experience and is really the norm with respect to increased ratings earnings, and examinations are provided to determine how the condition has gotten worse. And in fact, it was these examinations. It's all the time that it's going to do assist stuff that led the VA in these cases to take into account these other aspects of the claim with respect to Mr. Schultz's other potential causes of need like discomfort and with respect to the best for his other potential. So again, this sort of supports our view of why the VA constructs its regulations, unlike Congress constructs the statute, the way it did. There's a reason, and that time and purpose for these things and when you look at the process as a whole, like in these cases, these spectrums were able to be served by the process. But what the ventureist court has done is simply say, now, okay, that's great, but we're going to make this notice requirement. The outset, larger and more claimant-specific, and frankly, it disrupts the whole administrative process. That the VA was considering when they were implementing the regulations or compilating regulations and saying no to the request for specificity at the outset, because the VA, I mean, as we all know in these rulemaking challenges, it's as unique a place to make these kinds of terminations as to what is the best use for resources, how best to meet the goals of the statute at the same time to do it in an efficient manner. And that's what they did in the rulemaking with the money of the VCA statute. And so what the VCA does, or what the pension court does in this case, is to ignore all of that

. There's no discussion in the decision of Shabron. There's no discussion of what the agency's concerns might have been, where an articulated, both in the rulemaking and in the court's decision in Wilson, as to why it might make more sense from a rulemaking perspective to have more generic notice at the outset and then have the claimant developed during the assistant stages, and then at the end of the day, you have an initial decision. And if that initial decision is suspecting some way, there's a very straightforward process for the veteran claimant to challenge that decision and to add more evidence to the file. And as the court in Wilson went over in some detail, that process of being able to add more evidence continues and continues and really answers the question raised by Council earlier about effective date. I mean, you continue to be able to respond to these little things as they go along. And at the end of the day, if you prevail, even if it takes a deal to this court and a subsequent remain, and you do get that effective date from your earlier point. I mean, I know there's made arguments on the basis of our rejecting committee court, leaving a solid, but it seems to me that the argument you've just made is kind of bolstered by state committee court, which I found a little confusing. But at some points on page 82, it says that the committee believes that by notifying the veteran, then an examination would be scheduled to evaluate blah, blah, blah, blah. And to be the notified would be met, seems to me there's a lot in the committee report that emphasizes sort of success as long as you get medical exam. That's all that you mean, even connection with the notification. Well, that is the view of the committee report here. But it is the interesting because then they go on to talk about best catch. So it goes back and forth. The part that I think we're really finding confusing about the committee report is what seems to be the overarching concern in simplicity. The report begins with noticing, notifying that we went to so many VA, location view about 208 claim applications, and the one common thread that we took away from that was overly lengthy, overly maybe realistic, overly complicated notices

. And again, that's what we're trying to stress here is that rather than recognize that what basketball's for is now imposes, and what shows now imposes, is exactly that kind of length and complication that the veteran doesn't need to be able to do it. The veteran should not have to deal with at the outset of the process. And that's what we're doing with basketball is providing them pages and pages of multisolabic word medical terms, and the veteran is supposed to go through that rather than say, how does it remember as we? Well, the committee report also has somewhere references that all you need to do is include an appendix to the left. And in the case of at least the best heads, I think the appendix would include just the diagnostic colors that are cross-right, doesn't seem to be that that's overly complicated. And I think really is something for the agency to address in the upcoming rulemaking that they will not will address it. And I would not be surprised to become the same conclusion that they came to at the earlier rulemaking with respect to the complicated nature and administrative burden, associated with these claim-specific notices. But for this court, we're reviewing what it's actually the 2000 and the regular list of the recommended year later. We have, I think, solid ground upon which to find that the agency had every reason and good reasons to reject the specific requirement that this court has addressed those in the general sense, irrespective of the tipped distinctly complaints in PBA. And in Wilson case, which didn't follow up with the claim-preserved connection, but recognized the scope of what the agency was doing in implementing the ECA as part of the 3.159 regulation. And that was that, I mean, when the court holds that the notice can be generic, it's hard to reconcile a generic notice with a notice that is different. It's just these two cases, the notice is more different. How can they be generic? And then also contain different types of diagnostic. Generic has a meaning that I think we all accept. And that, okay, the name, the person's name is different and maybe the identification of the particular claim is different

. But then the goal required the agency to go and identify specific diagnostic codes or, and again, below, there's some question about what the federal court's current position is, clearly, in the decisions there is a strong suggestion that these potentially related diagnostic codes are also required, which does involve a denigated type of activity. Well, no place at that stage. You're reading, Wilson, how would a generic notice be different for a different type of claim such as a claim-preserved connection compared with a claim for increased visibility? Well, in this case, the key distinction is the paragraph that addresses the worsening of the condition. And a claim-preserved connection, there is no service-connected disability. So there is no notice in claim-preserved connection about, show us how the condition has gotten worsened. Instead, the focus is on what we call the collusive factors. And this court, I think, has referred to them as well, of an in-service event or injury, present-day disability and the nexus between the two. And that is the focus for service connection, and that is the focus for the service connection, though it's... So there is the distinction there between the types of claims that we're talking about, one for service connection, and one for an increased rate. But beyond that, then, we do get into the specifics of evidence, particular claims that seem to us clearly across the dam, and also the line, and the PDD line, and the agency's own position when they did the roadmaking. And that's where we think about this court, but wrong here, and that's why we're actually used to it. We may have already covered this by a publicized, but I think, I think, Judge Lynn earlier on asked a question about why regulation generally just parac, what the statute says, whether the regulations are entitled to shed a high on governance. Right, and I think, in our response was that, in this particular case, although the regulation is parac, if you will, paraded the statute, there's agency in the roadmaking itself, the agency explained why

. Because the question was, why not make the notice more specific, and in the roadmaking, the agency responded as to the administrative rationale behind why it wasn't more specific. So this is a little different than the typical case where you don't come in. How do we get Chevron Jack? That's the agency's interpretation of this regulation that this court in Wilson has already found, was sufficient by which it could apply to the Chevron Jack in Stanford. So, and then I have to, I would like to make one more comment before I take my seat, with respect to the daily life thing, which I'm... I argue in the daily life thing, there's no basis in 11 to be 5, or the rate of schedule for a requirement that the notice, see evidence indicating an effect upon the daily life. Because that's not at all involved in the examination, so that if the notice was silent, but that the, but that the infection provided such evidence, the VA then is free to weigh that or reject it as the case would be. But to require the VA, and it's noticed, to provide that kind of evidence, suggests to the veteran that that evidence might be sufficient to support a claim when it isn't. Because the statute doesn't have anything to do with that. Supposedly, we agree with you that the definition of disability is, in fact, employability, and that it would not be necessary to give the veteran notice that he can provide daily life evidence, or should provide daily life evidence, because that might lead him down the wrong track. But what do we do? This notice suffers the same defect as the previous notice, in that your argument was, in the brief, quite clear, that the notice only has to pertain to employability. And if I take you out your word, or sets a free say this, this notice doesn't even arguably do that either. So just tell me what do I do in this case, if I'm willing to go with you and say veterans court, you did it wrong, notice should not move daily life, but Mr. Hoppy and the government are correct, it pertains only to employability or employability

. What do I do with the fact that neither of these notices actually give that to create notice? Any answer, which sums it all up, I think, is what is the role of the court in this type of situation? Is it to determine whether or not an action or a regulation is sufficient move of statute, or is it to try to articulate? So if you get to the vacate then, is that where you're taking the vacate since the wrong standard was applied, you're vacating for consideration these facts into the correct standard? Yes, and that also was pointed out to me, and I would think that we would ask the court vacant. Well, I would think your answer to Judge will be 100% of the diagnostic codes, which is yes, ultimately employability is the beyond and all the materials you evaluate, but at this threshold level, we think for common sense reasons or whatever, we're assuming kind of covers, so I would think you would defend what can be clear. Well, I think what we're suggesting is not that the court need to say that no one should, I mean what we're not suggesting is the court need to say, it should only include employability, but what we're suggesting is that all the court needs to say, no one notice the need to employ our day of life. And so I think that this generally with our position on. Thank you very much. Mr. Conninger. I have please support any particular carry on that have the money to show us. Since obviously you have taken great deal of time, I think I'm not quite sure where to begin, but let me try to begin first with the question of the difference. I think the question of death is here is illusory. I do not believe there is any interpretation that has been made by the VA in its regulation, that the regulation does, and your repair it, the language of the statute, and therefore there has been no interpretation. And in particular, there's been no interpretation as it relates to the question of notice related to worsening, including the effect on daily life. There has simply been no interpretation by the VA that addresses that issue. I am there in its discussion in its rule, maybe there is no reference to day of life. There is merely this reference to specific, which then takes a good question of the difference between this court's decision Wilson and as it applies with claim for service connection and this court's decision

. In this case, as it relates to a notice that involves a different type of claim, a different claim that has a different nature. And I don't believe that there is any dispute or that the government has attempted to argue that there is any different for a student that does not in fact exist a difference between a service connection claim as in Wilson and the claim for increase in this year. So, even though Wilson was claim for service connection and not for increase in this ability, I don't know why is it holding their abreast. But as Mr. Jakes, it did. Well, I'm not sure. I don't know if you've been reading that. The political end, though it necessarily must be tailored to this specific nature of the veterans claim. That's right. And it's an acknowledgement that there is a difference between the individual and the type of claim that is at issue. And I believe that what this case ends up boiling down to and what this court must focus on is the meaning of the term information as it appears in both the statute and the regulation. And that the term information is different and is clearly used by Congress as a separate category from evidence. And that information in the context of Mr. Schultz's case in particular is the information about the diagnostic code that's being used to evaluate his case. And that he should have that information up front that the original notice to him should say, we are evaluating you not under just one diagnostic code, but we're evaluating you under two diagnostic codes

. And this is the rating criteria for those. And when we say a worsening, it has to be in relationship to this specific criteria. And that's information that is to be shared. That is information that is necessary to substantiate the claim by obtaining evidence which directs the veteran to support his or her claim. But is that information specific to that in the individual veteran's case? No. The diagnostic codes apply to every veteran. The diagnostic codes are specific to that. That's right. And that's the nature of this claim. This claim as referred to in all the nature of the claim is that it's a claim for increased disability. That's right. And a showing must be that there is a worsening or some condition that would affect the rating. But what the court recognized in the VASCAS war is, and obviously Mr. Schultz is either the victim or the beneficiary of VASCAS war. And what the court below said in VASCAS war is, is that these diagnostic codes provide information that is critical to substantiating the claim

. And when that information is withheld, you have a necessarily effective notice. And the whole purpose, the congressional intent in providing 5103 small A notice is to give the veteran the opportunity to get his or her claim substantiated. The first time so that he or she doesn't need the higher lawyer so that they didn't know in all of this colloquial following the notice of disagreement and a decision review officer and the statement of the case. And they substantiated the P.L. and the appearance of the court. And years, sometimes decades, to get resolution. If that information was provided up front, then the veteran would have an opportunity to substantiate the claim. And that will tell you information come up in the context of the processing of the claim and as Mr. Hoppe alluded to earlier in the government's duty to assist. That is not my experience. What happens is that a written submission is made, a claim is filed, and then there is an answer back from the VA. This fantasized colloquial interaction that doesn't take place. The VA goes behind closed doors and makes the decision. Not in my experience

. In several decades, witnessing what is supposed to be the way in which it is described. And it's obviously much easier to describe it that way on the hill and in this courtroom. But what we're talking about is the first opportunity that the veteran gets after he or she says I would like more money. I would like more compensation because I think my condition warrants it. I am service connected through this condition. Now, Congress says you tell that veteran the information that they need. And part of that information they need is what is the rating criteria. And the rating criteria applies in every single case. And then when it gets complicated and this is alluded to in the past, as far as not so much complicated in the show, is that you have spin-offs from that applicable diagnostic code. At least in the context, in Mr. Schultz's case, the error seems to be much more focused on the fact that there were two different rating criteria. And that information was withheld both that they were using two criteria and what those criteria were. Is it your view that the veterans court is saying that the notice required must go beyond simply for us referencing applicable codes and provide even more information? Well, to be perfectly frank, I'm not sure. But what is clear now and I'm just proofs alluded to with the 2008 legislation is that that view in some fashion has been adopted by Congress. And Congress has now given a direction to the VA to use Vaxx as far as as a template for creating new notices and claims for invrids. But that doesn't help your case here. Indeed, Mr. Hoppy suggests that there was some of that before the statute, such as the smell of the choir. Well, I'm not sure that that's the case, Your Honor, because that goes to the question of what it is that we are interpreting here or what it was about 503A that the veterans court was interpreting. Were they making the same type of interpretation of 503A that was made in Wilson? And I suggest that they were not except possibly for that last parenthetical phrase that related to Taylor to the nature of the claim. And that, if it has some meaning, has meaning when you look at the reality of a claim for invrids because we know in Part 4 of Chapter 38 of the Code of Federal Regulations, there is this extensive section that deals with the rating codes. And you go to those rating codes and you find out what this condition is rateable at, some of which are half, others of which go all the way up to the maximum limit of 100. But in each of those is the specific criteria for what it takes from the VA's point of view to assign an evaluation of 10, 30, 50, whatever the particular rating will be. So if you type in kidney problem, does it pop up just the one diagnostic code 7508 or does it pop up all the relay code? Well, it probably won't pop them up if you go to this at Part 4. There is a whole section and in the kidney section there's a multiple set of listings of different types of kidney conditions that can be rated as the VA has designed. There is a specific regulation in 4.2-0 that provides for the use of analogous ratings when the rating code doesn't provide. And then of course that's when things get especially complicated because there isn't a code to use. So how on earth would you get an increase in rating if you at least didn't know what the starting code was that the VA relied upon as the analogous code? So don't you talk about a starting code when there is certain connection established? You knew you were on. So that information is not what a vector comes in or increased rating

. But that doesn't help your case here. Indeed, Mr. Hoppy suggests that there was some of that before the statute, such as the smell of the choir. Well, I'm not sure that that's the case, Your Honor, because that goes to the question of what it is that we are interpreting here or what it was about 503A that the veterans court was interpreting. Were they making the same type of interpretation of 503A that was made in Wilson? And I suggest that they were not except possibly for that last parenthetical phrase that related to Taylor to the nature of the claim. And that, if it has some meaning, has meaning when you look at the reality of a claim for invrids because we know in Part 4 of Chapter 38 of the Code of Federal Regulations, there is this extensive section that deals with the rating codes. And you go to those rating codes and you find out what this condition is rateable at, some of which are half, others of which go all the way up to the maximum limit of 100. But in each of those is the specific criteria for what it takes from the VA's point of view to assign an evaluation of 10, 30, 50, whatever the particular rating will be. So if you type in kidney problem, does it pop up just the one diagnostic code 7508 or does it pop up all the relay code? Well, it probably won't pop them up if you go to this at Part 4. There is a whole section and in the kidney section there's a multiple set of listings of different types of kidney conditions that can be rated as the VA has designed. There is a specific regulation in 4.2-0 that provides for the use of analogous ratings when the rating code doesn't provide. And then of course that's when things get especially complicated because there isn't a code to use. So how on earth would you get an increase in rating if you at least didn't know what the starting code was that the VA relied upon as the analogous code? So don't you talk about a starting code when there is certain connection established? You knew you were on. So that information is not what a vector comes in or increased rating. You start with at least that knowledge of that code. And that presupposes that that information is conveyed to the veteran. And that information has not always been conveyed to the veteran. Would that be enough if the VA provided a notice that said please show us how your condition has worsened and any changes in any applicable codes? You're not because I think the information that needs to be conveyed first is we are evaluating your service connected disability under this rating code. So you can find it in the code of federal regulation at this point. And this is the rating criteria for the rating that we have assigned and the next higher rating in all ratings thereafter. I mean the veteran doesn't know. I mean we're only doing a case this where he's already gotten a disability rating. So he doesn't have any access to the information about what I think was award this rating of 30%? No, whatever. When you know what number of code is? Absolutely not your honor. In most cases. But I don't have to ban the medical evidence that was part of this process. Does any of access to all of those medical records? He does have access to those medical records. But those medical records have to be mixed and matched against what the rating code is that was applied. What do you get from the initial service connection determination? And if code is assigned, he gets no notice

. You start with at least that knowledge of that code. And that presupposes that that information is conveyed to the veteran. And that information has not always been conveyed to the veteran. Would that be enough if the VA provided a notice that said please show us how your condition has worsened and any changes in any applicable codes? You're not because I think the information that needs to be conveyed first is we are evaluating your service connected disability under this rating code. So you can find it in the code of federal regulation at this point. And this is the rating criteria for the rating that we have assigned and the next higher rating in all ratings thereafter. I mean the veteran doesn't know. I mean we're only doing a case this where he's already gotten a disability rating. So he doesn't have any access to the information about what I think was award this rating of 30%? No, whatever. When you know what number of code is? Absolutely not your honor. In most cases. But I don't have to ban the medical evidence that was part of this process. Does any of access to all of those medical records? He does have access to those medical records. But those medical records have to be mixed and matched against what the rating code is that was applied. What do you get from the initial service connection determination? And if code is assigned, he gets no notice. So that he only gets notified of the... Traditionally the VA only sends out the rating decision itself and does not send out what is called the code sheet, which is the last page of a rating decision. So what is the rating decision that it gets then? What does it say? You have been being service connected for the residuals of your knee condition. At the opposite, whatever. Just to understand a technical question here, is the diagnostic code that was used by medical provider different from the rating code that you're describing to me? There is no such thing as the first part. For insurance purposes, every insurance company requires diagnostic codes to be identified by doctors, treating patients. The VA in psychiatric cases has adopted the DSM for the rating labels. But the diagnostic criteria is independent of the diagnostic labeling system under DSM. And there is nothing comparable like you would find in workman's compensation for instance where you have that. No, these... You may have to keep your terms going to link

. So that he only gets notified of the... Traditionally the VA only sends out the rating decision itself and does not send out what is called the code sheet, which is the last page of a rating decision. So what is the rating decision that it gets then? What does it say? You have been being service connected for the residuals of your knee condition. At the opposite, whatever. Just to understand a technical question here, is the diagnostic code that was used by medical provider different from the rating code that you're describing to me? There is no such thing as the first part. For insurance purposes, every insurance company requires diagnostic codes to be identified by doctors, treating patients. The VA in psychiatric cases has adopted the DSM for the rating labels. But the diagnostic criteria is independent of the diagnostic labeling system under DSM. And there is nothing comparable like you would find in workman's compensation for instance where you have that. No, these... You may have to keep your terms going to link. I just asked people to address this point that I've been struggling with how to handle this daily life unavoidability thing. Because as I'm sick here thinking this through, the one thing that starts me is Mr. Hockey is usually the one telling me I can't look into fact findings. If the veterans' work comprises me of that finding that this notice, IE, got more, was insufficient to have for the veterans' work to have demonstrated daily life and unavoidability. So I guess I'm having trouble saying, well, because if I'm to accept the level of generality for example, which I understood into a reason in response to just first questions, if I was to accept his argument that gotten worse is very general. And therefore, cover both. And then that would be asked me to review the fact finding of the veterans' work that it doesn't. Right. And that's why I don't think this part's got any jurisdiction to be hearing in this case in the first instance. All that was done was an application of law to the facts of this case. And the... So we need to be able to say that veterans' work you've got it right with regard to the standard unavoidability and daily life is the correct level of notice that must be perfect. But if they're provided, we shouldn't even go that far

. I just asked people to address this point that I've been struggling with how to handle this daily life unavoidability thing. Because as I'm sick here thinking this through, the one thing that starts me is Mr. Hockey is usually the one telling me I can't look into fact findings. If the veterans' work comprises me of that finding that this notice, IE, got more, was insufficient to have for the veterans' work to have demonstrated daily life and unavoidability. So I guess I'm having trouble saying, well, because if I'm to accept the level of generality for example, which I understood into a reason in response to just first questions, if I was to accept his argument that gotten worse is very general. And therefore, cover both. And then that would be asked me to review the fact finding of the veterans' work that it doesn't. Right. And that's why I don't think this part's got any jurisdiction to be hearing in this case in the first instance. All that was done was an application of law to the facts of this case. And the... So we need to be able to say that veterans' work you've got it right with regard to the standard unavoidability and daily life is the correct level of notice that must be perfect. But if they're provided, we shouldn't even go that far. I don't think so, Your Honor. Because if they did it, they did it by omission. And I don't believe that omission is part of the... Well, I was identified omission. They made a fact finding. They said the notice was insufficient because it didn't demonstrate the linkage of gotten worse to failing one. But they did it by the way. That's right. But they didn't make any analysis relative to the question of unemployability. They didn't look into basket four as does not look into the type of analysis under 1155 that's been suggested by the VA. So why don't you have jurisdiction if they say..

. I don't think so, Your Honor. Because if they did it, they did it by omission. And I don't believe that omission is part of the... Well, I was identified omission. They made a fact finding. They said the notice was insufficient because it didn't demonstrate the linkage of gotten worse to failing one. But they did it by the way. That's right. But they didn't make any analysis relative to the question of unemployability. They didn't look into basket four as does not look into the type of analysis under 1155 that's been suggested by the VA. So why don't you have jurisdiction if they say... I'm sorry. Why don't you have jurisdiction if they say it's a matter of law? You will be required to ask him about the statement like you can do that. Why can't we evaluate that determination by the matter? Because I don't believe that they made an interpretation of 503A when they made that determination in basket four. They simply said that as we examine the notice in this case, I'm talking about Schultz. Now they did in fact investigate Schultz. Probably go further and probably did make an interpretation. And I'm sorry. I can suddenly realize that I'm speaking about Schultz tonight. That's my ball. I don't believe I have anything else. This is a different question. Thank you very much. Thank you. What's happened? What's happened? I think this is a risk that you're in your interpretation. Yes, I think it'd be for us in Schultz

. I'm sorry. Why don't you have jurisdiction if they say it's a matter of law? You will be required to ask him about the statement like you can do that. Why can't we evaluate that determination by the matter? Because I don't believe that they made an interpretation of 503A when they made that determination in basket four. They simply said that as we examine the notice in this case, I'm talking about Schultz. Now they did in fact investigate Schultz. Probably go further and probably did make an interpretation. And I'm sorry. I can suddenly realize that I'm speaking about Schultz tonight. That's my ball. I don't believe I have anything else. This is a different question. Thank you very much. Thank you. What's happened? What's happened? I think this is a risk that you're in your interpretation. Yes, I think it'd be for us in Schultz. The procedure was that we appeal Schultz, which relied on the interpretation of basket four as... So at the time we appeal that there's a concern as to whether basket four is a basic part of any kind of reasonable time. And so if you look at the two decisions one way, I can understand what the question's coming from in respect to Schultz. If you address what we believe is clearly a legal interpretation in basket four as we simply say, and oh by the way, Schultz is wrong because they apply basket four as then you might have a situation where you can say we're going to dismiss Schultz as long as we reach the question in basket four as. Although we do know, as we indicated earlier, that aspect of Schultz, which sort of... Which because of the nature of the diagnostic was used, does seem to expand on basket four as a respect to the regulatory type of behavior of... Could you go to this little issue I'm having with..

. The procedure was that we appeal Schultz, which relied on the interpretation of basket four as... So at the time we appeal that there's a concern as to whether basket four is a basic part of any kind of reasonable time. And so if you look at the two decisions one way, I can understand what the question's coming from in respect to Schultz. If you address what we believe is clearly a legal interpretation in basket four as we simply say, and oh by the way, Schultz is wrong because they apply basket four as then you might have a situation where you can say we're going to dismiss Schultz as long as we reach the question in basket four as. Although we do know, as we indicated earlier, that aspect of Schultz, which sort of... Which because of the nature of the diagnostic was used, does seem to expand on basket four as a respect to the regulatory type of behavior of... Could you go to this little issue I'm having with... I hate to bring you this little issue, but this daily life, unemployability and the lower court, at least in basket four, at least in one of these cases, made a fact finding that you fail to satisfy notice. So doesn't that prohibit me from saying as a factual matter, just saying that gotten worse is a liberal generality that we've necessarily included both of those? Because that was a fact finding. So the part is the part I don't think I can reach. I can reach the legal question when they have to do those on the things. Well we wouldn't ask the court and I don't think we're asking the court and I've reached the terminator. Once the court, in this case, the federal court, assuming the court, in this case, the federal court went too far in imposing a requirement in the notice of daily life. All the court need to do is say there's no basis in the statute for you to make the interpretation of the statute and the regulations of the requirement in the notice of daily life, period, baking. And then there's no question of whether or not Mr. Vespas-Floris has noticed or whether or not Mr. Schultz has noticed actually, or did not meet this type of problem. Our concern is that by suggesting that there is a requirement for the notice to address daily life, it is interpreted the statute. And that is something the court can address. And in so doing when the extent of court says, yes, there's no requirement in these cases for the notice to request information about or evidence about daily life. That's really the end of the matter if you bake a decision below. I want to quickly address, but consider it a little bit of testimony concerning what an award decision says

. I hate to bring you this little issue, but this daily life, unemployability and the lower court, at least in basket four, at least in one of these cases, made a fact finding that you fail to satisfy notice. So doesn't that prohibit me from saying as a factual matter, just saying that gotten worse is a liberal generality that we've necessarily included both of those? Because that was a fact finding. So the part is the part I don't think I can reach. I can reach the legal question when they have to do those on the things. Well we wouldn't ask the court and I don't think we're asking the court and I've reached the terminator. Once the court, in this case, the federal court, assuming the court, in this case, the federal court went too far in imposing a requirement in the notice of daily life. All the court need to do is say there's no basis in the statute for you to make the interpretation of the statute and the regulations of the requirement in the notice of daily life, period, baking. And then there's no question of whether or not Mr. Vespas-Floris has noticed or whether or not Mr. Schultz has noticed actually, or did not meet this type of problem. Our concern is that by suggesting that there is a requirement for the notice to address daily life, it is interpreted the statute. And that is something the court can address. And in so doing when the extent of court says, yes, there's no requirement in these cases for the notice to request information about or evidence about daily life. That's really the end of the matter if you bake a decision below. I want to quickly address, but consider it a little bit of testimony concerning what an award decision says. Our rating decision has, we understand it and we can play with justice with something on paper. Although we're not in the following case, rating decisions typically do identify the dire next to court. So an individual who's been sort of connected with this dire next to court is, talk about information for a second. Council, again, this discussion with respect to argument that, well, he's focusing on not so much evidence about the information, I just want to draw a attention later this morning. Information is specifically identified in regulation at 3.159.85. To me, nine of the injury facts, such as claiming social screening and the little address, the name of the military or person who served with the veteran or the same, and the name of the address is the medical care provider. It's not, I think, as broad as council would suggest, and expect his interpretation of information. And frankly, for further support, I would point the part to the congressional record about 7,000 to 7,000,000, in which the comment that the notice would inform the claimant of the information, example, social screening number, these kinds of basic facts. That's what the information is. Not information about other potentially related disabilities. And I would just conclude by saying, again, it seems to us that the question that was raised first by the statute by Congress and the comments by VA and the rulemaking by this court in PVA and by this court in the Senate. And again, today's piece is, how can you have an American notice that requires specific information pertinent to a particular claimant? Thank you.

Right arguments, and obviously to be accepted, that's necessary to the context of this argument that's possible. But everything you said in the other piece will look like these things. Thank you, Dr. Anand. And I do intend to do that. In fact, I'm going to sort of pick up and try to change date here, although I will say I'll render that. There's a type of, many of these responses applied to cases, as I tried in the case in the earlier case. In this case, the same thing. That would be best for us to try and append it here. Switch to controls to appendix. Many of the issues are exactly the same, just in a different setting. There are some new ones, instead of moving into the point. Whatever we discussed earlier, we would sort of be considering this thing. But one of the things that we are discussing is this concern about while I'm going to tell them everything that we do that. And Mr. Bachelors, this is basically an 8-7-3. And I'm going to use your choice cases that they print 5. How does your condition has gotten a little more than just tell us how your condition has gotten worse? It actually identifies the types of evidence that are needed, like doctors, reports, lay statements, things like that. And they also invite the individual in for an examination under the statute of regulations. Examinations are as required. And as both of these individuals experience and is really the norm with respect to increased ratings earnings, and examinations are provided to determine how the condition has gotten worse. And in fact, it was these examinations. It's all the time that it's going to do assist stuff that led the VA in these cases to take into account these other aspects of the claim with respect to Mr. Schultz's other potential causes of need like discomfort and with respect to the best for his other potential. So again, this sort of supports our view of why the VA constructs its regulations, unlike Congress constructs the statute, the way it did. There's a reason, and that time and purpose for these things and when you look at the process as a whole, like in these cases, these spectrums were able to be served by the process. But what the ventureist court has done is simply say, now, okay, that's great, but we're going to make this notice requirement. The outset, larger and more claimant-specific, and frankly, it disrupts the whole administrative process. That the VA was considering when they were implementing the regulations or compilating regulations and saying no to the request for specificity at the outset, because the VA, I mean, as we all know in these rulemaking challenges, it's as unique a place to make these kinds of terminations as to what is the best use for resources, how best to meet the goals of the statute at the same time to do it in an efficient manner. And that's what they did in the rulemaking with the money of the VCA statute. And so what the VCA does, or what the pension court does in this case, is to ignore all of that. There's no discussion in the decision of Shabron. There's no discussion of what the agency's concerns might have been, where an articulated, both in the rulemaking and in the court's decision in Wilson, as to why it might make more sense from a rulemaking perspective to have more generic notice at the outset and then have the claimant developed during the assistant stages, and then at the end of the day, you have an initial decision. And if that initial decision is suspecting some way, there's a very straightforward process for the veteran claimant to challenge that decision and to add more evidence to the file. And as the court in Wilson went over in some detail, that process of being able to add more evidence continues and continues and really answers the question raised by Council earlier about effective date. I mean, you continue to be able to respond to these little things as they go along. And at the end of the day, if you prevail, even if it takes a deal to this court and a subsequent remain, and you do get that effective date from your earlier point. I mean, I know there's made arguments on the basis of our rejecting committee court, leaving a solid, but it seems to me that the argument you've just made is kind of bolstered by state committee court, which I found a little confusing. But at some points on page 82, it says that the committee believes that by notifying the veteran, then an examination would be scheduled to evaluate blah, blah, blah, blah. And to be the notified would be met, seems to me there's a lot in the committee report that emphasizes sort of success as long as you get medical exam. That's all that you mean, even connection with the notification. Well, that is the view of the committee report here. But it is the interesting because then they go on to talk about best catch. So it goes back and forth. The part that I think we're really finding confusing about the committee report is what seems to be the overarching concern in simplicity. The report begins with noticing, notifying that we went to so many VA, location view about 208 claim applications, and the one common thread that we took away from that was overly lengthy, overly maybe realistic, overly complicated notices. And again, that's what we're trying to stress here is that rather than recognize that what basketball's for is now imposes, and what shows now imposes, is exactly that kind of length and complication that the veteran doesn't need to be able to do it. The veteran should not have to deal with at the outset of the process. And that's what we're doing with basketball is providing them pages and pages of multisolabic word medical terms, and the veteran is supposed to go through that rather than say, how does it remember as we? Well, the committee report also has somewhere references that all you need to do is include an appendix to the left. And in the case of at least the best heads, I think the appendix would include just the diagnostic colors that are cross-right, doesn't seem to be that that's overly complicated. And I think really is something for the agency to address in the upcoming rulemaking that they will not will address it. And I would not be surprised to become the same conclusion that they came to at the earlier rulemaking with respect to the complicated nature and administrative burden, associated with these claim-specific notices. But for this court, we're reviewing what it's actually the 2000 and the regular list of the recommended year later. We have, I think, solid ground upon which to find that the agency had every reason and good reasons to reject the specific requirement that this court has addressed those in the general sense, irrespective of the tipped distinctly complaints in PBA. And in Wilson case, which didn't follow up with the claim-preserved connection, but recognized the scope of what the agency was doing in implementing the ECA as part of the 3.159 regulation. And that was that, I mean, when the court holds that the notice can be generic, it's hard to reconcile a generic notice with a notice that is different. It's just these two cases, the notice is more different. How can they be generic? And then also contain different types of diagnostic. Generic has a meaning that I think we all accept. And that, okay, the name, the person's name is different and maybe the identification of the particular claim is different. But then the goal required the agency to go and identify specific diagnostic codes or, and again, below, there's some question about what the federal court's current position is, clearly, in the decisions there is a strong suggestion that these potentially related diagnostic codes are also required, which does involve a denigated type of activity. Well, no place at that stage. You're reading, Wilson, how would a generic notice be different for a different type of claim such as a claim-preserved connection compared with a claim for increased visibility? Well, in this case, the key distinction is the paragraph that addresses the worsening of the condition. And a claim-preserved connection, there is no service-connected disability. So there is no notice in claim-preserved connection about, show us how the condition has gotten worsened. Instead, the focus is on what we call the collusive factors. And this court, I think, has referred to them as well, of an in-service event or injury, present-day disability and the nexus between the two. And that is the focus for service connection, and that is the focus for the service connection, though it's... So there is the distinction there between the types of claims that we're talking about, one for service connection, and one for an increased rate. But beyond that, then, we do get into the specifics of evidence, particular claims that seem to us clearly across the dam, and also the line, and the PDD line, and the agency's own position when they did the roadmaking. And that's where we think about this court, but wrong here, and that's why we're actually used to it. We may have already covered this by a publicized, but I think, I think, Judge Lynn earlier on asked a question about why regulation generally just parac, what the statute says, whether the regulations are entitled to shed a high on governance. Right, and I think, in our response was that, in this particular case, although the regulation is parac, if you will, paraded the statute, there's agency in the roadmaking itself, the agency explained why. Because the question was, why not make the notice more specific, and in the roadmaking, the agency responded as to the administrative rationale behind why it wasn't more specific. So this is a little different than the typical case where you don't come in. How do we get Chevron Jack? That's the agency's interpretation of this regulation that this court in Wilson has already found, was sufficient by which it could apply to the Chevron Jack in Stanford. So, and then I have to, I would like to make one more comment before I take my seat, with respect to the daily life thing, which I'm... I argue in the daily life thing, there's no basis in 11 to be 5, or the rate of schedule for a requirement that the notice, see evidence indicating an effect upon the daily life. Because that's not at all involved in the examination, so that if the notice was silent, but that the, but that the infection provided such evidence, the VA then is free to weigh that or reject it as the case would be. But to require the VA, and it's noticed, to provide that kind of evidence, suggests to the veteran that that evidence might be sufficient to support a claim when it isn't. Because the statute doesn't have anything to do with that. Supposedly, we agree with you that the definition of disability is, in fact, employability, and that it would not be necessary to give the veteran notice that he can provide daily life evidence, or should provide daily life evidence, because that might lead him down the wrong track. But what do we do? This notice suffers the same defect as the previous notice, in that your argument was, in the brief, quite clear, that the notice only has to pertain to employability. And if I take you out your word, or sets a free say this, this notice doesn't even arguably do that either. So just tell me what do I do in this case, if I'm willing to go with you and say veterans court, you did it wrong, notice should not move daily life, but Mr. Hoppy and the government are correct, it pertains only to employability or employability. What do I do with the fact that neither of these notices actually give that to create notice? Any answer, which sums it all up, I think, is what is the role of the court in this type of situation? Is it to determine whether or not an action or a regulation is sufficient move of statute, or is it to try to articulate? So if you get to the vacate then, is that where you're taking the vacate since the wrong standard was applied, you're vacating for consideration these facts into the correct standard? Yes, and that also was pointed out to me, and I would think that we would ask the court vacant. Well, I would think your answer to Judge will be 100% of the diagnostic codes, which is yes, ultimately employability is the beyond and all the materials you evaluate, but at this threshold level, we think for common sense reasons or whatever, we're assuming kind of covers, so I would think you would defend what can be clear. Well, I think what we're suggesting is not that the court need to say that no one should, I mean what we're not suggesting is the court need to say, it should only include employability, but what we're suggesting is that all the court needs to say, no one notice the need to employ our day of life. And so I think that this generally with our position on. Thank you very much. Mr. Conninger. I have please support any particular carry on that have the money to show us. Since obviously you have taken great deal of time, I think I'm not quite sure where to begin, but let me try to begin first with the question of the difference. I think the question of death is here is illusory. I do not believe there is any interpretation that has been made by the VA in its regulation, that the regulation does, and your repair it, the language of the statute, and therefore there has been no interpretation. And in particular, there's been no interpretation as it relates to the question of notice related to worsening, including the effect on daily life. There has simply been no interpretation by the VA that addresses that issue. I am there in its discussion in its rule, maybe there is no reference to day of life. There is merely this reference to specific, which then takes a good question of the difference between this court's decision Wilson and as it applies with claim for service connection and this court's decision. In this case, as it relates to a notice that involves a different type of claim, a different claim that has a different nature. And I don't believe that there is any dispute or that the government has attempted to argue that there is any different for a student that does not in fact exist a difference between a service connection claim as in Wilson and the claim for increase in this year. So, even though Wilson was claim for service connection and not for increase in this ability, I don't know why is it holding their abreast. But as Mr. Jakes, it did. Well, I'm not sure. I don't know if you've been reading that. The political end, though it necessarily must be tailored to this specific nature of the veterans claim. That's right. And it's an acknowledgement that there is a difference between the individual and the type of claim that is at issue. And I believe that what this case ends up boiling down to and what this court must focus on is the meaning of the term information as it appears in both the statute and the regulation. And that the term information is different and is clearly used by Congress as a separate category from evidence. And that information in the context of Mr. Schultz's case in particular is the information about the diagnostic code that's being used to evaluate his case. And that he should have that information up front that the original notice to him should say, we are evaluating you not under just one diagnostic code, but we're evaluating you under two diagnostic codes. And this is the rating criteria for those. And when we say a worsening, it has to be in relationship to this specific criteria. And that's information that is to be shared. That is information that is necessary to substantiate the claim by obtaining evidence which directs the veteran to support his or her claim. But is that information specific to that in the individual veteran's case? No. The diagnostic codes apply to every veteran. The diagnostic codes are specific to that. That's right. And that's the nature of this claim. This claim as referred to in all the nature of the claim is that it's a claim for increased disability. That's right. And a showing must be that there is a worsening or some condition that would affect the rating. But what the court recognized in the VASCAS war is, and obviously Mr. Schultz is either the victim or the beneficiary of VASCAS war. And what the court below said in VASCAS war is, is that these diagnostic codes provide information that is critical to substantiating the claim. And when that information is withheld, you have a necessarily effective notice. And the whole purpose, the congressional intent in providing 5103 small A notice is to give the veteran the opportunity to get his or her claim substantiated. The first time so that he or she doesn't need the higher lawyer so that they didn't know in all of this colloquial following the notice of disagreement and a decision review officer and the statement of the case. And they substantiated the P.L. and the appearance of the court. And years, sometimes decades, to get resolution. If that information was provided up front, then the veteran would have an opportunity to substantiate the claim. And that will tell you information come up in the context of the processing of the claim and as Mr. Hoppe alluded to earlier in the government's duty to assist. That is not my experience. What happens is that a written submission is made, a claim is filed, and then there is an answer back from the VA. This fantasized colloquial interaction that doesn't take place. The VA goes behind closed doors and makes the decision. Not in my experience. In several decades, witnessing what is supposed to be the way in which it is described. And it's obviously much easier to describe it that way on the hill and in this courtroom. But what we're talking about is the first opportunity that the veteran gets after he or she says I would like more money. I would like more compensation because I think my condition warrants it. I am service connected through this condition. Now, Congress says you tell that veteran the information that they need. And part of that information they need is what is the rating criteria. And the rating criteria applies in every single case. And then when it gets complicated and this is alluded to in the past, as far as not so much complicated in the show, is that you have spin-offs from that applicable diagnostic code. At least in the context, in Mr. Schultz's case, the error seems to be much more focused on the fact that there were two different rating criteria. And that information was withheld both that they were using two criteria and what those criteria were. Is it your view that the veterans court is saying that the notice required must go beyond simply for us referencing applicable codes and provide even more information? Well, to be perfectly frank, I'm not sure. But what is clear now and I'm just proofs alluded to with the 2008 legislation is that that view in some fashion has been adopted by Congress. And Congress has now given a direction to the VA to use Vaxx as far as as a template for creating new notices and claims for invrids. But that doesn't help your case here. Indeed, Mr. Hoppy suggests that there was some of that before the statute, such as the smell of the choir. Well, I'm not sure that that's the case, Your Honor, because that goes to the question of what it is that we are interpreting here or what it was about 503A that the veterans court was interpreting. Were they making the same type of interpretation of 503A that was made in Wilson? And I suggest that they were not except possibly for that last parenthetical phrase that related to Taylor to the nature of the claim. And that, if it has some meaning, has meaning when you look at the reality of a claim for invrids because we know in Part 4 of Chapter 38 of the Code of Federal Regulations, there is this extensive section that deals with the rating codes. And you go to those rating codes and you find out what this condition is rateable at, some of which are half, others of which go all the way up to the maximum limit of 100. But in each of those is the specific criteria for what it takes from the VA's point of view to assign an evaluation of 10, 30, 50, whatever the particular rating will be. So if you type in kidney problem, does it pop up just the one diagnostic code 7508 or does it pop up all the relay code? Well, it probably won't pop them up if you go to this at Part 4. There is a whole section and in the kidney section there's a multiple set of listings of different types of kidney conditions that can be rated as the VA has designed. There is a specific regulation in 4.2-0 that provides for the use of analogous ratings when the rating code doesn't provide. And then of course that's when things get especially complicated because there isn't a code to use. So how on earth would you get an increase in rating if you at least didn't know what the starting code was that the VA relied upon as the analogous code? So don't you talk about a starting code when there is certain connection established? You knew you were on. So that information is not what a vector comes in or increased rating. You start with at least that knowledge of that code. And that presupposes that that information is conveyed to the veteran. And that information has not always been conveyed to the veteran. Would that be enough if the VA provided a notice that said please show us how your condition has worsened and any changes in any applicable codes? You're not because I think the information that needs to be conveyed first is we are evaluating your service connected disability under this rating code. So you can find it in the code of federal regulation at this point. And this is the rating criteria for the rating that we have assigned and the next higher rating in all ratings thereafter. I mean the veteran doesn't know. I mean we're only doing a case this where he's already gotten a disability rating. So he doesn't have any access to the information about what I think was award this rating of 30%? No, whatever. When you know what number of code is? Absolutely not your honor. In most cases. But I don't have to ban the medical evidence that was part of this process. Does any of access to all of those medical records? He does have access to those medical records. But those medical records have to be mixed and matched against what the rating code is that was applied. What do you get from the initial service connection determination? And if code is assigned, he gets no notice. So that he only gets notified of the... Traditionally the VA only sends out the rating decision itself and does not send out what is called the code sheet, which is the last page of a rating decision. So what is the rating decision that it gets then? What does it say? You have been being service connected for the residuals of your knee condition. At the opposite, whatever. Just to understand a technical question here, is the diagnostic code that was used by medical provider different from the rating code that you're describing to me? There is no such thing as the first part. For insurance purposes, every insurance company requires diagnostic codes to be identified by doctors, treating patients. The VA in psychiatric cases has adopted the DSM for the rating labels. But the diagnostic criteria is independent of the diagnostic labeling system under DSM. And there is nothing comparable like you would find in workman's compensation for instance where you have that. No, these... You may have to keep your terms going to link. I just asked people to address this point that I've been struggling with how to handle this daily life unavoidability thing. Because as I'm sick here thinking this through, the one thing that starts me is Mr. Hockey is usually the one telling me I can't look into fact findings. If the veterans' work comprises me of that finding that this notice, IE, got more, was insufficient to have for the veterans' work to have demonstrated daily life and unavoidability. So I guess I'm having trouble saying, well, because if I'm to accept the level of generality for example, which I understood into a reason in response to just first questions, if I was to accept his argument that gotten worse is very general. And therefore, cover both. And then that would be asked me to review the fact finding of the veterans' work that it doesn't. Right. And that's why I don't think this part's got any jurisdiction to be hearing in this case in the first instance. All that was done was an application of law to the facts of this case. And the... So we need to be able to say that veterans' work you've got it right with regard to the standard unavoidability and daily life is the correct level of notice that must be perfect. But if they're provided, we shouldn't even go that far. I don't think so, Your Honor. Because if they did it, they did it by omission. And I don't believe that omission is part of the... Well, I was identified omission. They made a fact finding. They said the notice was insufficient because it didn't demonstrate the linkage of gotten worse to failing one. But they did it by the way. That's right. But they didn't make any analysis relative to the question of unemployability. They didn't look into basket four as does not look into the type of analysis under 1155 that's been suggested by the VA. So why don't you have jurisdiction if they say... I'm sorry. Why don't you have jurisdiction if they say it's a matter of law? You will be required to ask him about the statement like you can do that. Why can't we evaluate that determination by the matter? Because I don't believe that they made an interpretation of 503A when they made that determination in basket four. They simply said that as we examine the notice in this case, I'm talking about Schultz. Now they did in fact investigate Schultz. Probably go further and probably did make an interpretation. And I'm sorry. I can suddenly realize that I'm speaking about Schultz tonight. That's my ball. I don't believe I have anything else. This is a different question. Thank you very much. Thank you. What's happened? What's happened? I think this is a risk that you're in your interpretation. Yes, I think it'd be for us in Schultz. The procedure was that we appeal Schultz, which relied on the interpretation of basket four as... So at the time we appeal that there's a concern as to whether basket four is a basic part of any kind of reasonable time. And so if you look at the two decisions one way, I can understand what the question's coming from in respect to Schultz. If you address what we believe is clearly a legal interpretation in basket four as we simply say, and oh by the way, Schultz is wrong because they apply basket four as then you might have a situation where you can say we're going to dismiss Schultz as long as we reach the question in basket four as. Although we do know, as we indicated earlier, that aspect of Schultz, which sort of... Which because of the nature of the diagnostic was used, does seem to expand on basket four as a respect to the regulatory type of behavior of... Could you go to this little issue I'm having with... I hate to bring you this little issue, but this daily life, unemployability and the lower court, at least in basket four, at least in one of these cases, made a fact finding that you fail to satisfy notice. So doesn't that prohibit me from saying as a factual matter, just saying that gotten worse is a liberal generality that we've necessarily included both of those? Because that was a fact finding. So the part is the part I don't think I can reach. I can reach the legal question when they have to do those on the things. Well we wouldn't ask the court and I don't think we're asking the court and I've reached the terminator. Once the court, in this case, the federal court, assuming the court, in this case, the federal court went too far in imposing a requirement in the notice of daily life. All the court need to do is say there's no basis in the statute for you to make the interpretation of the statute and the regulations of the requirement in the notice of daily life, period, baking. And then there's no question of whether or not Mr. Vespas-Floris has noticed or whether or not Mr. Schultz has noticed actually, or did not meet this type of problem. Our concern is that by suggesting that there is a requirement for the notice to address daily life, it is interpreted the statute. And that is something the court can address. And in so doing when the extent of court says, yes, there's no requirement in these cases for the notice to request information about or evidence about daily life. That's really the end of the matter if you bake a decision below. I want to quickly address, but consider it a little bit of testimony concerning what an award decision says. Our rating decision has, we understand it and we can play with justice with something on paper. Although we're not in the following case, rating decisions typically do identify the dire next to court. So an individual who's been sort of connected with this dire next to court is, talk about information for a second. Council, again, this discussion with respect to argument that, well, he's focusing on not so much evidence about the information, I just want to draw a attention later this morning. Information is specifically identified in regulation at 3.159.85. To me, nine of the injury facts, such as claiming social screening and the little address, the name of the military or person who served with the veteran or the same, and the name of the address is the medical care provider. It's not, I think, as broad as council would suggest, and expect his interpretation of information. And frankly, for further support, I would point the part to the congressional record about 7,000 to 7,000,000, in which the comment that the notice would inform the claimant of the information, example, social screening number, these kinds of basic facts. That's what the information is. Not information about other potentially related disabilities. And I would just conclude by saying, again, it seems to us that the question that was raised first by the statute by Congress and the comments by VA and the rulemaking by this court in PVA and by this court in the Senate. And again, today's piece is, how can you have an American notice that requires specific information pertinent to a particular claimant? Thank you