In this case, it is number 081790. James E. Sursley against the Secretary of Veterans Affairs, Mr. Barney. Thank you, Your Honesty. And please, the Court James Barney on behalf of the Appellan Mr. Sursley. There are two alternative arguments set forth in the briefs. One is a plain meaning argument. The other is an ambiguity argument. This morning I would like to focus primarily on an ambiguity argument because I believe that is Mr. Sursley's strongest argument. The question here is whether 38 U.S.C. Section 1162 clearly precludes the DVA from providing two separate clothing allowances to a veteran such as Mr. Sursley who has amputations about the upper and lower extremities
. If there is any ambiguity on this point, then we submit that the CABC's interpretation of the statute is erroneous because the CABC did not give any credence to the Supreme Court's decision in Brown B. Gardner. Mr. Poyn just to the ambiguity. Point the ambiguity out. Is that your question? The ambiguity. I agree if there is no ambiguity, it is difficult. So the point here is if there is any ambiguity that I believe there is error in the CABC's decision because it failed to apply the guidance of Brown B. Gardner. So turning to the statute 1162, there are two sections and I would like to address both of them in turn. The first paragraph 1 requires the Secretary to pay a clothing allowance to each veteran who, because of a service connected disability, wears or uses a prosthetic or orthopedic appliance including a wheelchair which the Secretary determines tends to wear out or tear the clothing of the veteran. Now here there is no dispute that Mr. Sursley uses a wheelchair which is service connected and that would separately qualify him under the statute for a clothing allowance. And there is also no dispute that Mr. Sursley has a prosthetic arm also service connected which would separately qualify him for the clothing allowance under the statute. The question is whether there is something in that statute that clearly precludes or prohibits the DVA which is what the court held from awarding Mr
. Sursley to separate allowances. Now both the CABC and the Secretary argue that yes there is something that clearly does prohibit the DVA from awarding to allowances and that is the text. In a sense that the statute says a singular a clothing allowance to each veteran and the Secretary argues that this clearly means that each veteran can only get one allowance. Well we disagree, I think I can illustrate this with an analogy. We are all generally familiar with the tax code and you can imagine a provision of the tax code that provides a singular a tax credit to each taxpayer who purchases a hybrid vehicle during the tax year. But what happens if you purchase two hybrid vehicles during the tax year? Do you get one tax credit or you get two tax credits? I would submit that at best that provision would be ambiguous on that point and highly likely that taxpayers would litigate it. And arguably if there is nothing in the tax code that specifically limits a taxpayer to only one tax credit if you purchase two qualifying vehicles you should be entitled to two tax credits. You can use other analogies but the point is that you use the patent analogy and the patent claims where a does not mean single but couldn't mean plural. There are cases from this court saying a means more than one at times. I would accept that as well your honor. Thank you. And the point is you can come up with lots of analogies and I think the point is that anytime you have language that ties a benefit to a qualification there is an inherent ambiguity. Because the question is what happens if you have two qualifications and that's the situation with this statute. There is an inherent ambiguity. Now I think the secretary has acknowledged that because the secretary posits an alternative argument which is that Mr. Sursley's interpretation of the statute would lead to unworkable results
. Specifically and the CAC also put this in its opinion but specifically the secretary argues that under Mr. Sursley's interpretation a veteran with two prostheses on his arms for instance two prosthetic arms would still qualify for two clothing allowances even though both of those prostheses tend to wear out the same article of clothing. Well we disagree that that's necessarily going to be the result of this interpretation. The DVA already has a framework in place for distinguishing between what it calls overlapping disabilities and non overlapping disabilities. And with the courts and doldens I would like to refer to the decision of the veterans court and Esteban B Brown. I will apologize this was not cited in the briefs but I would like to cite it now because I think it's important. This is 6 vet app 259 page 262 and this is a decision of the veterans court in 1994. Now in Esteban this the veteran had a single service connected injury to his face but it resulted in three separate disabilities. Disfigurement of his face painful scars and muscle injury interfering with his ability to chew or mass decates each of these disabilities was separately readable at 10% under the rating schedule but the RO and the BVA both awarded only a total of 10% to the veteran and they reasoned that he shouldn't be allowed to stack or pyramid these ratings on top of each other because they all related to the same injury. It went to the CABC and the CABC disagreed in a word of the veteran a total of 30% and it's the court's reasoning that I think is very important here so I'd like to go ahead and read it. And again this is from 6 vet app page 262. The critical element is that none of the symptomatology for any one of these three conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Appellance symptomatology is distinct and separate. Disfigurement painful scars and facial muscle damage resulting in problems with mass decation. Thus as a matter of law appellant is entitled to combine his 10% rating for disfigurement within additional 10% rating for tender and painful scars and a third 10% rating for facial muscle injury interfering with mass decation. So that same framework which is already in place at the DVA it's been the law since at least 1994 where they distinguish between overlapping and non-overlapping injuries could be applied here
. So a reasonable interpretation of 1162 would be to say that a veteran can receive multiple clothing allowances if he has qualifying disabilities that are distinct and non-overlapping with the respect to how they tend to wear and tear the veterans clothing. So going back to the situation of a veteran with two prosthetic arms if those prosthetic arms both tend to wear and tear the same article of clothing a reasonable interpretation would be that those are overlapping injuries that only entitle the veteran to one clothing allowance. But that's not the situation here. Mr. Sursley has what could be called non-overlapping injuries. He he uses a wheelchair which tends to wear and tear pants and he has a prosthetic arm which tends to wear and tear shirts. So we disagree with the secretary and the CADC that our interpretation would somehow lead to unworkable result below. I want to briefly just turn to paragraph two of the statute. It was deals with medication that have been prescribed by a physician for service connected skin condition which determine which the secretary has determined causes irreparable damage to the veterans outer garments. Would you differentiate then based upon the wear and tear the particular clothing in various parts. So if you have a pair of pants then the fact that you're wearing them all the time in a wheelchair they would wear faster than a shirt that you'd wear or a prosthetic arm. Who's to make that determination? You think that the statute will allow that for regulatory purposes? The statute allows the secretary to make that determination and the statute is clear that the secretary is the one that determines whether or not a particular prosthetic device tends to wear and tear an article of clothing. In practice I believe these this determinations are made by the VA in a general categories that wheelchair in general are determined to wear and tear pants that prosthetic limbs of the upper body are in general deemed to wear and tear shirts. I'm not sure that answers your question. So that would be a different wear and tear type of location that you differentiate the two or even three or four for that matter. That's right
. So for each one it would be a separate clothing loss. That's right under under our interpretation of the statute that would be correct as long as they're not overlapping. So if you have two prosthetic arms that both wear and tear the same article of clothing that would those would be overlapping disabilities. Paragraph two to be clear Mr. Sursley is not claiming a clothing allowance under paragraph two. The only reason I'm discussing it is that the secretary has pointed to paragraph two as an interpretive aid to be able to interpret paragraph one. Specifically the government argues that because paragraph two appears to allow only one clothing allowance even for a skin condition that affects both the upper and lower portions of the body. That same paradigm has to be applied to paragraph one. That is incorrect because paragraph two is very clearly by design narrower and scope than paragraph one. Paragraph two only applies if there's irreparable damage to the veteran's outer garments. Paragraph one in contrast does not require irreparable damage. It only requires wear and tear and it's not limited to outer garments. It actually could include undergarments as well and that's an issue that's actually been litigated at the CABC. Actually if I understand it although I think it's dictated in the case the secretary seems to be of the view that if you're getting a clothing allowance under one you cannot get one under two. You're only entitled to one or the other. That's right
. You're on that was the and I create is dictated which is why I hadn't planned on addressing it. That strikes me as rather strange and view of the fact that they're quite different problems and they might affect quite different parts of your clothing. But I don't really think that we need to address that issue here. Neither do you. I don't think so your honor. But I do agree with your analysis. But turning to paragraph two again the other difference is paragraph two requires a physician's prescription for the medication paragraph one does not require prescription for the orthopedic devices or prosthesis. So the point is if you read the text of the statute it's clear that paragraph two by design is narrower and scope. So it would not be fair or correct to use paragraph two to artificially limit the scope of paragraph one. Next I'd like to just briefly address the legislative history because I also think it's very important in this case. The 1972 legislative history does not shed any light on the question before the court today and the reason is the VA during the 1972 deliberations put forth two separate and different sets of numbers. One set of numbers tends to support the government's argument here but the other set of numbers supports Mr. Sercel's interpretation. So it best the 1972 legislative history is kind of a wash. It doesn't shed any light on the question that needs to be answered here. But what's more relevant is the 1989 legislative history because in 1989 Congress amended section 1162 for the express and written purpose of expanding the clothing benefit
. And it did so in two ways. It added paragraph two was refers to the skin condition of problem. And in addition Congress specifically amended paragraph one to eliminate the plural word appliances leaving only the singular word appliance. Now there's nothing in the 1989 legislative history that specifically says why Congress made that change but a very reasonable and logical explanation and I would submit the only reasonable and logical explanation for why Congress eliminated the plural appliances is that it wanted to make clear that severely injured veterans like Mr. Sercel at triple amputee are not going to be limited to a single clothing allowance if they have multiple appliances. Instead each one of those appliances can in appropriate circumstances qualify for separate clothing allowance. Now we submit that it's error to overlook a specific amendment that the court, excuse me, that Congress made to the statute. Congress eliminated the plural word appliances presumably for a reason and Mr. Sercel has presented a logical and reasonable explanation for why Congress did so. The government has not provided any explanation. And therefore we think the 1989 legislative history very strongly supports a broad interpretation of paragraph one. Now Mr. Bernie, are you ready to re-bettle time? Would you like to save it? Yes, Your Honor. Thank you. Okay, then let's see from the secretary. Morning, Your Honor
. May I please the court the plain language of 38 USC section 1162 provides for a single clothing allowance per veteran per year. If you look at the statutory text itself, the sort of introductory paragraph says the secretary shall pay a clothing allowance of $662 per year to each veteran. One clothing allowance singular per year to each veteran. Singular. It doesn't say one says a. A generally means one singular. It doesn't say shall pay clothing allowances plural per year. We do have some patent case that say eight doesn't mean a. It could be more than one. But Your Honor, I'm not familiar with that. On that basis, you're not a bad lawyer. What are you doing in this courtroom? On that basis, why could we say that eight does not mean one? Eight could mean a single occurrence, right? Eight could mean one. It could be more than one. Proficies could be an arm, a leg, and a wheelchair so you could have more than one cumulative type of allowance. You could have certainly could have more than one. Proceases, but that doesn't mean that you have more than one allowance
. There's nothing in the language that I would read that says a maximum of $677 per year. No, but it's specifying a number of $662 per year to each veteran. In that sense, it's saying this is the allowance amount. Everyone gets $662 regardless of what your actual damage to your clothing is. Congress has chosen not to go to each veteran and say how much per year are you spending extra because you have one prosthesis or more than one prosthesis. Congress has said each veteran gets $662 per year if they qualify, that is if they have a service-connected disability that requires them to wear or use a prosthetic. Would you read it differently if it said a clothing allowance of $660 per year to veterans who, because of a service-connected disability, would that change your construction? No, that wouldn't be not quite as clear as the each veteran language, but it's still under the regulation. Would we a clothing allowance per year to veterans who? We're talking about the statute. Yes, we're still talking about the statute. Who, because of a service-connected disability, that... All right, let's take that phrase. How benefit said the cause of service-connected disabilities? That would actually more favor our interpretation. Yes, I think it would. I think you're right
. I think if it said because of service-connected disabilities, your case would be quite persuasive, but it doesn't. It says, as the plaintiff has pointed out, that Congress is using the singular here just as they converted the statute from plural appliances to a singular appliance. If you use singular here because of a service-connected disability, which doesn't that suggest to you that a service-connected disability means exactly that, and if you have more than one service-connected disability, in appropriate cases, you might be entitled to more than one clothing allowance. No, a service-connected disability, certainly I would agree with you that a service-connected disability means one disability, in the sense that all you need is one in order to get this benefit. You don't need more than one disability to get the benefit. You only need one, so it's saying you get the clothing allowance if you have a service-connected disability that requires you to wear the prosthesis. It seems to me your thesis sounds very much like the sort of thing an insurance company argues when it's trying to avoid liability, which strikes me as little odd in the context in which the Veterans Administration has an obligation to try to help veterans. How do you reconcile those two ideas? Well, there's certainly an obligation to help veterans, but Congress is the one who passed this particular statute, and what the court needs to do is look at the plain language of the statute and interpret what Congress intended to do with the clothing allowance, and it's our position that the plain language says one clothing allowance per veteran per year, whether or not that construction is fair to Veterans is not something that's court gets to. Unless there's an ambiguity in the statute, there's an ambiguity in the regulation, and there's some ambiguity in the VA's interpretation of the right. Let's approach it from this question, and not so much ambiguity. Let's, for the purpose of this question, agree that it is quite a reasonable plain reading that a means one. Is your position that it's impossible to read it any other way? Because if it's not impossible, whether or not it is the most logical plain reading, then that we have to consider the rules and the statutes about interpreting situations in favor of veterans. Right. If the court were to find that the plain language could be read some other way, other than one clothing allowance. Well, that wasn't my question. Are you saying that it's impossible to read it so that it would permit an additional clothing allowance in this situation where it's clearly different articles of clothing? Right. Well, that would be the same thing. If the plain language says a certain thing, then it would be impossible under the plain language for there to be more than one clothing allowance. So you were saying that the plain language is used here by the Veterans Court is the only conceivable reading? That's correct. Based upon the way that it was... That quite plain language, often, is subject to more than one reading. That's why we have lawsuits about plain language. Well, if there's ambiguity, then it's not plain language, and then the court would have to look at the regulation. So you were saying that there are no gradations that either up or down? Either up or down that there's one or more than one clothing allowance. In terms of reading the statute, that it is absolutely prohibited in your view to read the statute more generously to the Veterans, recognizing there is statutes that require that that be done because of the way the statute is written. That's correct. In our view, the way the statute is written, you only get one clothing allowance per Veterans. Does it say only? Does it? No, it doesn't say only in the language, but it's our position that..
. Well, that would be the same thing. If the plain language says a certain thing, then it would be impossible under the plain language for there to be more than one clothing allowance. So you were saying that the plain language is used here by the Veterans Court is the only conceivable reading? That's correct. Based upon the way that it was... That quite plain language, often, is subject to more than one reading. That's why we have lawsuits about plain language. Well, if there's ambiguity, then it's not plain language, and then the court would have to look at the regulation. So you were saying that there are no gradations that either up or down? Either up or down that there's one or more than one clothing allowance. In terms of reading the statute, that it is absolutely prohibited in your view to read the statute more generously to the Veterans, recognizing there is statutes that require that that be done because of the way the statute is written. That's correct. In our view, the way the statute is written, you only get one clothing allowance per Veterans. Does it say only? Does it? No, it doesn't say only in the language, but it's our position that... That would be plain language, I think, if it said only. Well, that would say... Do you have a situation that, according to the statistics, apparently wasn't even presented? This is an unusually disabled veteran. Probably, I'm not aware of the statistics as to how many Veterans have more than one. I think there are some... We're at this in figures in one of your briefs. There were figures concerning the total number of Veterans that might qualify for a clothing allowance. There were no statistics in the legislative history concerning specifically how many of that group were Veterans that had more than one. Do we have any current statistics from the VA on how many Veterans might qualify if more than one clothing allowance was available with the understanding that that clothing allowance would be for different garments, no? To the same garment. No, you're on it. We don't have those things in the way. We have no data
. That would be plain language, I think, if it said only. Well, that would say... Do you have a situation that, according to the statistics, apparently wasn't even presented? This is an unusually disabled veteran. Probably, I'm not aware of the statistics as to how many Veterans have more than one. I think there are some... We're at this in figures in one of your briefs. There were figures concerning the total number of Veterans that might qualify for a clothing allowance. There were no statistics in the legislative history concerning specifically how many of that group were Veterans that had more than one. Do we have any current statistics from the VA on how many Veterans might qualify if more than one clothing allowance was available with the understanding that that clothing allowance would be for different garments, no? To the same garment. No, you're on it. We don't have those things in the way. We have no data. But if it's so clear that the situation wasn't considered, then how can the language be so plain as applied to the situation? It's not clear that the situation wasn't considered. It's not... So, there's no statistics. No numbers. That's right. Nobody knows. You want us to infer that the less was considered or infer that it was not considered. Neither, Your Honor. All of that... Our position is that it was not in the legislative history either way. There's nothing indicating that specifically Veterans with more than one prosthetic appliance were considered at the time of the statute. But just the language of the statute itself, and there was some more general discussion in the legislative history, which also referred to a clothing allowance and the clothing allowance singular, that those things indicate, even though the legislative history doesn't specifically address Veterans with multiple appliances, that they did consistently in the legislative history use the terms of an A referring to a singular clothing allowance
. But if it's so clear that the situation wasn't considered, then how can the language be so plain as applied to the situation? It's not clear that the situation wasn't considered. It's not... So, there's no statistics. No numbers. That's right. Nobody knows. You want us to infer that the less was considered or infer that it was not considered. Neither, Your Honor. All of that... Our position is that it was not in the legislative history either way. There's nothing indicating that specifically Veterans with more than one prosthetic appliance were considered at the time of the statute. But just the language of the statute itself, and there was some more general discussion in the legislative history, which also referred to a clothing allowance and the clothing allowance singular, that those things indicate, even though the legislative history doesn't specifically address Veterans with multiple appliances, that they did consistently in the legislative history use the terms of an A referring to a singular clothing allowance. You know, I love statutory interpretation cases because they just give you so many interesting issues. I agree with you as a matter of fact that the statute is really plain and is not ambiguous, but I happen to think it quite plain the other way, for example, but let me show you why that's true. The secretary under regulations, which the secretary shall prescribe, which certainly sounds like Congress intended the secretary to deal with the unique problems and cases that might come up. Shall pay a clothing allowance because I've skipped the two- each veteran part because who else would it be paid to? So I think that's just surplus to do that. Shall pay a clothing allowance because of a service-connected disability. Right? That's what it says. Which the secretary to terms tends to wear out of tear the clothing of a veteran. We have here a veteran with two service-connected disabilities, both of which tend presumably to wear out of tear the clothing of a veteran. Seems to me it's clear on its face that the secretary shall pay a clothing allowance because of each of those service-connected disabilities because it says because of a service-connected disability. So I think the plain meaning of the statute would all do respect to Mr. Barney's disagreement with me. I think the plain meaning of the statute is very clear. It says you are entitled to a clothing allowance, Mr. Veteran, for each service-connected disability you may have, if under the circumstances it makes sense to the secretary because you are damaging two different garments. Now the statute doesn't say that last part, but it's clear that the statute says the secretary shall prescribe regulation. You want to read the statute to make, to preclude the secretary from dealing with these unique, regrettably not unique cases in which you have a veteran with more than one service-connected disability
. You know, I love statutory interpretation cases because they just give you so many interesting issues. I agree with you as a matter of fact that the statute is really plain and is not ambiguous, but I happen to think it quite plain the other way, for example, but let me show you why that's true. The secretary under regulations, which the secretary shall prescribe, which certainly sounds like Congress intended the secretary to deal with the unique problems and cases that might come up. Shall pay a clothing allowance because I've skipped the two- each veteran part because who else would it be paid to? So I think that's just surplus to do that. Shall pay a clothing allowance because of a service-connected disability. Right? That's what it says. Which the secretary to terms tends to wear out of tear the clothing of a veteran. We have here a veteran with two service-connected disabilities, both of which tend presumably to wear out of tear the clothing of a veteran. Seems to me it's clear on its face that the secretary shall pay a clothing allowance because of each of those service-connected disabilities because it says because of a service-connected disability. So I think the plain meaning of the statute would all do respect to Mr. Barney's disagreement with me. I think the plain meaning of the statute is very clear. It says you are entitled to a clothing allowance, Mr. Veteran, for each service-connected disability you may have, if under the circumstances it makes sense to the secretary because you are damaging two different garments. Now the statute doesn't say that last part, but it's clear that the statute says the secretary shall prescribe regulation. You want to read the statute to make, to preclude the secretary from dealing with these unique, regrettably not unique cases in which you have a veteran with more than one service-connected disability. I cannot find that in Congress's intention that they want to preclude the secretary from dealing with those cases and I don't understand why the VA wants to find that in this statute. So it seems to me the clear meaning of the statute has to be exactly what it says. And the secretary can write regulations, the regulation he's written isn't very helpful, but the secretary can write regulations that say you only get one clothing allowance per garment, but if you've got more than one service-connected disability with affecting different garments by golly, we want to help you. Wouldn't that make sense for the secretary to take that position? The statute certainly allows the secretary to prescribe regulations to implement the statute, but we would, with all of your respect, disagree with your reading of the plain language. The part that does say per year to each veteran is an important part in that it is saying one per year to each singular veteran and the section that says because of a service-connected disability does not as your honor indicate and say because of each service-connected disability. But it doesn't say because of service-connected disabilities either, does it? No, it doesn't. It says a service-connected disability. And as I said earlier, all that saying is that you only need one disability. You don't need multiple disabilities to get the clothing allowance. You just need one, which is why it uses the singular term one. Mr. Cerrisley argued that the singular when we, in 1989, when the statute was amended and the plural disabilities was removed, that the only possible explanation for that was his explanation, that there would now be a possibility of getting more than one. But that is not the only reasonable explanation. It is also possible that the word or disabilities was just seen as surpluses because as I said, you only need one disability in order to get the clothing allowance. But given that we disagree on a plain meaning, perhaps there is no plain meaning. And in that case, if the court were to find it ambiguous, it's our position that difference should be given to VA's regulation that it has actually in the language
. I cannot find that in Congress's intention that they want to preclude the secretary from dealing with those cases and I don't understand why the VA wants to find that in this statute. So it seems to me the clear meaning of the statute has to be exactly what it says. And the secretary can write regulations, the regulation he's written isn't very helpful, but the secretary can write regulations that say you only get one clothing allowance per garment, but if you've got more than one service-connected disability with affecting different garments by golly, we want to help you. Wouldn't that make sense for the secretary to take that position? The statute certainly allows the secretary to prescribe regulations to implement the statute, but we would, with all of your respect, disagree with your reading of the plain language. The part that does say per year to each veteran is an important part in that it is saying one per year to each singular veteran and the section that says because of a service-connected disability does not as your honor indicate and say because of each service-connected disability. But it doesn't say because of service-connected disabilities either, does it? No, it doesn't. It says a service-connected disability. And as I said earlier, all that saying is that you only need one disability. You don't need multiple disabilities to get the clothing allowance. You just need one, which is why it uses the singular term one. Mr. Cerrisley argued that the singular when we, in 1989, when the statute was amended and the plural disabilities was removed, that the only possible explanation for that was his explanation, that there would now be a possibility of getting more than one. But that is not the only reasonable explanation. It is also possible that the word or disabilities was just seen as surpluses because as I said, you only need one disability in order to get the clothing allowance. But given that we disagree on a plain meaning, perhaps there is no plain meaning. And in that case, if the court were to find it ambiguous, it's our position that difference should be given to VA's regulation that it has actually in the language. The regulation parrots the statute. It doesn't exactly parrot the statute. It is a state of the... Right, and it also, more importantly, uses the term appliance says plural, which the statute does not use. And that indicates that VA has interpreted the statute to mean appliance, or appliance says plural, would still get you one clothing allowance. Exactly what the Congress repealed. Yes, but it's... Innicate... VA has changed this regulation since 1989 when Congress took out the or appliances. They've changed other parts of the regulation, but VA has not changed the portion that says appliances in their regulation, which seems to indicate that they kept the same interpretation of the statute throughout, even though Congress removed or appliances
. The regulation parrots the statute. It doesn't exactly parrot the statute. It is a state of the... Right, and it also, more importantly, uses the term appliance says plural, which the statute does not use. And that indicates that VA has interpreted the statute to mean appliance, or appliance says plural, would still get you one clothing allowance. Exactly what the Congress repealed. Yes, but it's... Innicate... VA has changed this regulation since 1989 when Congress took out the or appliances. They've changed other parts of the regulation, but VA has not changed the portion that says appliances in their regulation, which seems to indicate that they kept the same interpretation of the statute throughout, even though Congress removed or appliances. And the reason for that is that VA continued to interpret the statute to mean one clothing allowance regardless of whether you have one appliance or more than one appliance. So you're saying that the 1989 amendments and which supports your position, it's still singular. And it was with clear intent that they removed the plural in the language. For static or orthopedic appliance or appliances, they took appliances out. That's right. So what does that mean as far as congressional and tennis concerned, that they want to go back to the singular, whether they make the statute so ambiguous that it should be interpreted properly at this point in time? Does that would create the ambiguity? We don't know what Congress's intent was in removing the or appliances. It's our position that it didn't create any ambiguity that the statute, whether it says appliance or appliances or appliance singular, still has the plain meaning that you got one clothing allowance. There's no indication as to what Congress's intent was. What I'm saying is that if the court were to find that there's ambiguity in the statutory language, the regulation since 1999, even though it's been amended and VA has clearly considered it since the change in the statute has continued to keep the plural appliances, meaning that VA has interpreted the statute continuously from 1972 onward to mean that you get one clothing allowance. Whether we have one appliance or multiple appliances, that's also been consistent in VA's interpretation of the regulation and various VA documents, which are mentioned on page 23 of our brief that talk about the clothing allowance singular again has been consistent. Your review of the legislative history showed that this aspect wasn't discussed. The legislative history does show what an annual increase in the amount of the clothing allowance based on the cost of living is that why we have the increases that are shown and the irregular number now of $662. Right. Almost all of the changes that have been made in the statute, which appear to be yearly changes are just changes in the amount of the allowance. So it does increase based upon cost of living. Is the veteran get the increase automatically as a statute increases that I'm not sure of your honor, but I would think so since it's a yearly payment
. And the reason for that is that VA continued to interpret the statute to mean one clothing allowance regardless of whether you have one appliance or more than one appliance. So you're saying that the 1989 amendments and which supports your position, it's still singular. And it was with clear intent that they removed the plural in the language. For static or orthopedic appliance or appliances, they took appliances out. That's right. So what does that mean as far as congressional and tennis concerned, that they want to go back to the singular, whether they make the statute so ambiguous that it should be interpreted properly at this point in time? Does that would create the ambiguity? We don't know what Congress's intent was in removing the or appliances. It's our position that it didn't create any ambiguity that the statute, whether it says appliance or appliances or appliance singular, still has the plain meaning that you got one clothing allowance. There's no indication as to what Congress's intent was. What I'm saying is that if the court were to find that there's ambiguity in the statutory language, the regulation since 1999, even though it's been amended and VA has clearly considered it since the change in the statute has continued to keep the plural appliances, meaning that VA has interpreted the statute continuously from 1972 onward to mean that you get one clothing allowance. Whether we have one appliance or multiple appliances, that's also been consistent in VA's interpretation of the regulation and various VA documents, which are mentioned on page 23 of our brief that talk about the clothing allowance singular again has been consistent. Your review of the legislative history showed that this aspect wasn't discussed. The legislative history does show what an annual increase in the amount of the clothing allowance based on the cost of living is that why we have the increases that are shown and the irregular number now of $662. Right. Almost all of the changes that have been made in the statute, which appear to be yearly changes are just changes in the amount of the allowance. So it does increase based upon cost of living. Is the veteran get the increase automatically as a statute increases that I'm not sure of your honor, but I would think so since it's a yearly payment. Any more questions? Any more questions? Okay. Thank you. Mr. Bernie. Just a couple points, Your Honor. On the issue of deference, the CAVC found that the regulation does in fact pair at the statute. So to the extent that the court is going to afford deference to the agencies interpretation of its own regulation, it seems there should be deference to the CAVC, which is the highest tribunal in the agency's finding that the regulation is, quote, indistinguishable from the statute. With respect to the fact that the regulation was never amended and still contains the plural or the appliances, I don't believe that's the type of gap filling that is envisioned with Chevron deference. The agency essentially did nothing. It didn't fill a gap. It did nothing. It didn't amend the regulation. But in any event, whatever deference is owed here, and again, we don't think their Chevron deference is appropriate here because the regulation pairs the statute. But whatever deference is owed here, it has to be taken with the Supreme Court's guidance and Brown B. Gardner that regulations and statutes to the extent there's an ambiguity should be construed in favor of the veteran. The government in their brief on page five suggests actually more than suggest they argue that Chevron deference supplants the rule of Brown B
. Any more questions? Any more questions? Okay. Thank you. Mr. Bernie. Just a couple points, Your Honor. On the issue of deference, the CAVC found that the regulation does in fact pair at the statute. So to the extent that the court is going to afford deference to the agencies interpretation of its own regulation, it seems there should be deference to the CAVC, which is the highest tribunal in the agency's finding that the regulation is, quote, indistinguishable from the statute. With respect to the fact that the regulation was never amended and still contains the plural or the appliances, I don't believe that's the type of gap filling that is envisioned with Chevron deference. The agency essentially did nothing. It didn't fill a gap. It did nothing. It didn't amend the regulation. But in any event, whatever deference is owed here, and again, we don't think their Chevron deference is appropriate here because the regulation pairs the statute. But whatever deference is owed here, it has to be taken with the Supreme Court's guidance and Brown B. Gardner that regulations and statutes to the extent there's an ambiguity should be construed in favor of the veteran. The government in their brief on page five suggests actually more than suggest they argue that Chevron deference supplants the rule of Brown B. Gardner in the sense that if a regulation is a reasonable interpretation, of the statute, then you don't need to go to Brown B. Gardner even if it's a veteran statute. That is absolutely incorrect. And this court stated it properly. There would be for one second. In disabled American veterans, be gover, which we cite in our brief, Chevron deference applies if Congress is either silent or unclear on a particular issue. However, modifying the traditional Chevron analysis is the doctrine governing the interpretation of ambiguities and a veteran's benefit statute. That interpretive doubt is to be resolved in the veteran's favor. So even if I take it that neither Judge Carrson or I have persuaded you that you could, whether without patent law make a plain meaning interpretation of the statute in your favor. You have more than persuaded me on your honor. I totally agree. I selected what I hoped would be our strongest argument, but I think they're both strong arguments. So unless the court has any other question. Any other questions? I don't know if you've persuaded me or not. Thank you, Mr. Barnes
. This is Katna. Case is taken under submission