thank you your honor and me please the court the veterans court misinterpreted thirty eight c f r section four point seven veterans court as well as the secretary in this case has read and express limitation to section four point seven where none exists there is nothing in the regulation that requires all criteria to be satisfied the focus of the regulation is whether the overall disability picture more nearly approximates the criteria for the next higher disability rating in this case for the veterans diabetes the secretary roni sleep urges this court to preclude consideration of all of it as disability residuals even though section four point seven requires consideration of a veteran's overall disability picture this is legally incorrect the veterans court filth how can you say that you jump from from one to three when you don't satisfy two in this case your honor i believe that mr moore it would more nearly approximate the in between the forty percent he's getting twenty he makes a lot of the sixty and so he would want to approximate the forty i think the best illustration from a reading of four point seven would be a scale where you have twenty forty sixty in this particular case and he's clearly meets the twenty so what starts tipping the scale more towards the forty is you start putting different symptoms were different disciplines which he suffers that are caused by the diabetes on the other side of the scale  that's assuming that we're we're talking the constant lying scale this is the cumulative rating scale is now yes and absent the four point seven had never been promulgated by the secretary i would agree that absolutely he would have to me each and every step of the way because there's an n i understand there's excessive and i understand with the better support said in the in the camacho case however four point seven exists and if four point seven exists as well as the overall scheme as we noted in our briefing four point one four point  four point one five if four point seven exists it should be given some consideration it should be given consideration to see what the overall disability picture is because the point of the rating schedule is to compensate veterans for this particular sort of the more nearly approximate the higher rating when he has all these symptoms of the lower but not the higher he has some of the symptoms of the higher one but only one in this one and and the guinness judge of values pointed out the regulation for dealing with here seventy nine thirteen says to get level one you have say that if you missed one of those levels i don't think that under because four point seven exists i don't think you are off again i think a four point seven had never existed over four point one four point one zero or four point one five or any of those if they had never existed i would agree with your aunt put hardesty for four  point seven says when there's a question of which two evaluations should be applied there's no question here is there because you haven't met the criteria of the higher rating i would say your honor i notice you're trying to generate a question but lawyer argument doesn't present a sequester and we have to have a genuine legal problem don't we i was that your honor that the genuine legal question in this case is h to justly compensate us for his disability that's the question presented and it under the countless g c opinions and under the schema of the entire the regulatory scheme is a judgement call it's a judgment call for a rater is a judgment call for a rating specialist it's a judgment call for the board it's a judgment call all the way along the quest for legal question presented is what is this person's what is this veteran's disability picture and in this case requires insulin he has a restricted  so then we're left with the with the situation of looking at and agencies interpretation of its own rules and how are we to do with that issue here i would have a two part answer to that question if i may i would say first of all the plain language of the secretary's regulation secretary wrote four point seven and it allows for the for judgment in these types of cases where you've got somebody who here has hypertension  wouldn't even be more logical to apply for point seven at the margins in other words if it's unclear whether you really fall into to one category versus the next highest then that's where the judge macaw comes in but the notion that you would somehow take a category that's that's way up to the chain and then merge them all that's what you're you're proposing is a very mushy approach to this i would again points to plain language that th e department of veterans affairs is supposed to look at the entire disability picture does and obviously does not for this court to decide but does mr woods disability picture does what his day to day what his day to day life is is he adequately compensated  twenty percent considering that he meets things that are two steps higher than what he would be seeking clearly he believes he needs a forty percent since to me that he was compensated for that but to move up to the next level we needed to demonstrate  restriction in his movements as mobility and your client have two sizes he travels he can pick he who feel the responsibilities of his job as a real estate agent there's nothing in the record that i saw hundred seventy that's a vast difference from what was the basis for the service connection i would i don't know right if you know what the basis for the service connection was but in order to be awarded service ok again i have i believe it and mr believes that the sliding scale approach should be used in this case because four point seven does exist and yes he does it does not or the five the finder of fact that he does not have regulation of activities  the back to the matter is he does suffer from the compensable condition that is part of the sixty percent rating and we would not advocate at this point in time that mr wu be awarded the forty percent of the six percent that's something to be argued below but it does not see it does not make sense that four point seven applies to a whole host of diagnostic codes which the lower court the veterans court has acknowledged but does not apply to seventy nine thirteen does not apply to this diagnostic if four point seven exists in four point seven the language is pretty clear then it has to there has been more reasoning for it not to apply in this case other than the court just arbitrarily drawing a line i would say that it's a legal question and four point seven should be given its full consideration for all of the diagnostic codes for which it did for a minute you don't meet a particular criterion you're simply not a question as to whether that evaluation arises right you have to be when it says you must meet the following one two three or four requirements if you don't meet one or two of them there's not a question is there your hon meaning of you must have four if this were not in this particular instance if this were not in a veterans case in which four point seven and four point one and even if you want to seven be existed where you're supposed to evaluate an entire picture if those things did not exist and the law was perfectly clear that it was an end all of these criteria were successive i would absolutely agree and that is from from and the government decided some cases on that point that there are other areas apply discretion now that isn't done here right that's done that would be done absolutely wrong and they didn't find that it was necessary to do that and that's the finding of law that brings me here today but they will not even allow for four notion that it just doesn't apply in our it doesn't seem to make sense you aren't aware that when you're attempt to apply a four point seven to case such as this where there's not the veteran does not require regulation of activity which is the distinguishing criterion for point seven i simply cannot be applied in my case four point seven required has two steps that must be met and for order for it to apply first there has to be a question as to which disability rating applies in this case the twenty percent rating clearly applies because you  otherwise that when you don't meet that regulation of activity requirement then you can't apply it and i think the veterans court made that clear in his language it said quote section form point seven is in a political to mr wood's claim and that section four point seven is bullet to the application of diagnostic code seven nine one three so it's dealing specifically with the application to the situation here where you don't meet that regulation of activities are you saying we shouldn't read that holding more narrowly than then  appears on its face you're saying application in this particular case as opposed to any application of that diagnostic oh well i think that i would i would argue both i think that that it doesn't apply to i can't think of any situation where diagnostic code seven one w read where four point seven would apply but it's veterans court here is dealing with the specific case where he doesn't satisfy that regulation of activity criteria and that's the criteria that the board found was the primary characteristic in this case  being for extra in extraordinary circumstances that you can depart from the schedule however in this case the board mean explicit finding that there is nothing extraordinary about mr wood's case and mr wu hasn't pointed to anything outside of the diagnostic codes that is extraordinary or unusual about this case in the two extraordinary circumstances that identified by three point three two one being a market interference with employment and a frequent periods of hospitalization the board found that mr hospitalization and that his diabetes did not interfere with his ability to work at the end of the day mr woodward has now stated that he is he's not sure whether he's seeking the forty percent or sixty percent  rating but his brief is clear he says that because he meets all the criteria for the twenty percent rating and some of the criteria for the sixty percent rating that the fact finder was required to in essence split the difference in your water forty percent four point seven does not allow that four point seven is very clear it says that where there is a question as to which of two disability rating supplies then you have the factor and it has two options it can either apply the higher rating under mr wood's theory the sixty percent rating or the lower rating the twenty percent rating it does not say that you can award a good rating of some intermediate next highest rating there's simply no basis for splitting the difference here if you're honest have no questions thank you your honor all be very brief but the legal question presented in this case is whether four is whether the veterans court can read in a requirement in four point seven that is simply not there there is nothing in the plain language of the regulation that requires them to say or that would even encourage someone to say that four point seven does not apply to seven nine one three but it can apply to other cases that is a simple question for this court and i would ask the court also to to the point that my opponent was trying to make about three point three to one that would be for actual schedule of consideration and that's a completely different inquiry than the inquiry that would be triggered by four