well with the limitation of there is no statute or regulation that prevents that and there certainly is no case law that prevents that the case law says however that when they do that they must do so within certain parameters and reason  fifty five so let me let me tell you what my problem is i mean it seems to me that basically what you're arguing is that the regulation is arbitrary and capricious in not allowing ratings to be considered together for purposes of extra schedule or maybe but i don't see any evidence example of how this would be arbitrary the failure to combine would be arbitrary and capricious well that's the problem with the a's rule making in this case is that for eighty years the v a maintained what they refer to as their longings log standing interpretation of this ruling in any kind of answer machine just i'm talking about nobody has come up with hypotheticals where for example the failure to consider two ratings together  court interpreted the rule opposite their interpretation there is nothing to compare it to i can give you a hypothetical example what's a hypothetical i mean and there's no record of the  secretary has never applied the rule let's review what i mean people that does not prevent people from saying that the way the rule has been applied is arbor arbitron critias because here's example one two three four five where it is arbitrary i guess i presume your honor that the court would want to see actual examples of how this rule was applied in an arbitrary manner if the rule has never been applied and it has never been applied correctly capricious but if in a future case someone can show that the failure to combine the raid even consider them together is arbitrary and capricious then we'll consider the issue in the context of that individual case why wouldn't that be the appropriate way to resolve this case because that will require that prince to be subjected to this rule that is a rule that has never been applied i wait for a case in which that actually happens in order to consider that issue i don't see how this court could ever consider that issue on an as applied basis because it's beyond this court's jurisdiction it would be an application of law to fact it would be a discretionary judgment and on the part of the law of fact of determining whether application is arbitrary and capricious we have a statute which allows us to consider individual legal issues that's an individual this regulation was created more than eighty years ago to deal with the facking something logical and consistent with other regulatory schemes is not a reason to ban says no your honor because this regulation pertains to when the v a s regulations specifically its rating criteria as mandated by eleven fifty five doesn't work it doesn't adequately compensate or adequately rate the service connected disability so this is outside of those regulations that's why this is extra schedule or consideration as extra schedule or consideration the v a is required to look the on if that were the way in which this regulation is intended to operate you would be correct i believe you are incorrect because this regulation acts outside of the s regulatory scheme all i'm doing is reading from what they say and i'm saying in response to what they said is that they cannot use their own regulatory criteria their own regulate  their rating schedule because that raving schedule has been found as the predicate to trigger the use of this regulation to be inadequate if it is inadequate you cannot use the inadequate rating criteria to determine what the appropriate rating would be because the drivers stand perfectly that what they're saying is that they really do look at the regular reading criteria in order to determine if they are honestly and their system is only set up to do that for individual ratings as opposed to combined and that undermines the whole creation of this regulation as pointed out earlier this regulation has no statutory predicate in which congress said create a system to deal with when your rating schedule as we mandated in eleven fifty five doesn't fit why doesn't the fact that there is not a statute here give the agency one power to change its for him sins of course the last well i would say in the first instance because of the preceding eighty years in which the v should have been affording this additional consideration so that we would have something to actually compare it to to show how the v a would have operated had they in fact correctly interpreted the plain and unambiguous meaning of the obligation to consider all of the veterans disability the v a has arbitrarily have to do this in order to give you a record to argue that it's arbitrary and capricious that but no responding to to your construct that that is necessary i'm saying that they cannot we still don't have a single example of a situation in which their approach would be arbitrary which is not a single one there's not a single one in the record you well in the johnson case the veteran was refused consideration of extra schedule or consideration for more than one disability and the question that was presented to johnson was did the v a violate its own regulations when it said no we will not consider anything but one service connected disability if i recall correctly and if you are wrong about this i don't see anything in the johnson case that explains arbitron to preserve any explanation as to how it's arbitrary your honor the way i interpret the supreme court's ruling is is that it the burden is on the secretary to present to you a reason analysis for why the rescinding of the consideration of all of the veterans disability is the appropriate way to proceed going forward and with the vet v a s track record in which they are supposed to be adjudicating claims in the best interest of the veteran and giving the veteran every benefit of the doubt they have refused to do that for eighty years then they get overruled by this court that that practice is incorrect that interpretation is incorrect it is capricious to simply abandon that because they say it would be more efficient in order for them to compare to their own rating schedule when this regulation was complete created by the secretary on his authority to create a regulation that is consistent with the laws that he had ministers and the laws that he had ministers are the rating schedule that the predicate to get consideration you cannot get consideration under this regulation unless there is a finding that the regulation is inadequate to rate the veterans service connected disability and without considering the totality of the veterans service connected disability you get a skewed view by simply looking at that in isolation and that's what the this court found in johnson was wrong with their interpretation that you could interpret the phrase disability or disabilit court i mean the case is that not satisfied with the secretary is always interpreted the extra scheduler rating at three point three two one johnson alert the v a to the fact that the plain language as using ss in the term disability picture in other words could be read to apply to a combination of disability which had never been intended never been used that way so v a reacted as agencies are allowed to react in the absence of a court interpret ing a statute in a manner that allows no wiggle room which this did not support did not address in johnson fifty five or that three point three two one could only be results that might still be invalid under the administrative procedure act so then the problem here is that there isn't any evidence in the room that it was produced arbitrary results but suppose hypothetically that in some peacher case a veteran is the able to show that the failure to consider the combination does produce an arbitrary result well i mean you have to measure that against what th with congress has told the secretary to do and eleven fifty five what congress has told the secretary to do is to come up with a common raiding schedule and a common way to to combine the effect of multiple disabilities and that is the rating schedule that appears at thirty eight c f r forty one four point seven one eight hundred four point one five zero and the table of combined ratings that appears at thirty eight c f r four point two five so under the direction of criterion vs rating schedules describing the effect of specific for these injuries the ratings assigned for individual conditions are then combined into a single combined evaluation under a uniform formula set forth in the table are important to remember what is the purpose behind three point three two one i mean this wasn't focused on johnson because of plain language decision the purpose wasn't to address the combining language phrase that's contained in eleven fifty five in fact it wasn't really designed to address  any direction in eleven fifty five what it was designed to do was to address the reality that when you develop a common rating schedule everyone uses there may be situations in which a particular claimants disability is not reflected in the way the rating the diagnostic code levels of rating were created for that particular disability and so the v a decided then this was sort of a part of the if you see you know the generous in usually that we're responding to but here we're trying to taylor the reading schedule in a way that would sort of address these these cases is exceptional cases and the best way to do that is by using the standards that are contained in the rating schedule and comparing the the effect of the disability on the individual on the individual veteran in terms of the examples in the regulation are frequent hospitalization unusual work facts that is done at the disability level and then there's a factor given to it and when when if there's more than one disability that's part of it's rolled into the combine factor table if you will the other extra scheduler provision is four point one six t d i you provision and that's sort of it's similar in the sense that v a designed that to deal with the problem where either a single disability isn't really reflected in the schedule  everything lined up wherever the adds up but the point there is rather than allowing for sort of willy nilly oh i think this guy deserves more which is kind of the sort of the just behind what nova's argument is and that's why the secretary's on comfortable doing that kind of thing they look at it from something that's a little bit more objective lee measurable which is employability and so if you are employable or if you're not employable as a case in four point one six would be then facts can establish that the evaluators in the field can look at it in determine this person is not employable if that's the problem is that some instances in which that's not going to make count of the reality of the situation if you as i understand it there's a separate schedule rating  employability and suppose i know that can happen under the actual training schedule but i'm giving it to you as a hypothetical suppose we had a situation like that in the future in which a veteran can make a showing that the only that you can have a realistic determination of employee is by considering the two disabilities together couldn't it be arbitrary on some circumstances for the v a to refuse to do that i would think without imposing the direction of lot of the five on the agency that there are as an almost all regulatory of that story schemes and ministry of burdens associated with attempting to to do whatever the mission of the agency is here the mission of the agency is to give one a fits and so there's going to be a line like in all these situations where you have to say at this point trying to address particular idiosyncracies of every different claimant and i i think the numbers are what two hundred two million claims are submitted annually these and that it comes to much of a burden on the system but the hypothetical but given that would not be required it would be up to the veterans say in this particular case it's arbitrary because the compensation should lead to a higher rating so i am going to simply circle back and i'm going to answer this in a different way to to reiterate i still i would still maintain that in the absence of a direction from congress to approach the issue of veterans benefits on an individual basis but rather to come up with a system which is administrative  mean we're getting into questions of you know this is what the johnson case was about sure if there was a way to read the regulations so that you could provide more more benefits you know notwithstanding sears and other you know that would be desirable but there are limits as to how you can do that now i want to and that's what's you know reflected in this room making and how the v a is always construed as the v a i thought that the most practical way to address the potential  weaknesses in the in the schedule that applies to all is to address it through the disability now circling back to your hypothetical there are also requirements in part four of thirty eight c f r imposed upon the medical examiners and the raiders to really hone in on what's going on here figure out where you can best identify within the rating schedule what diagnostic code best measures up with what the doctrine is experiencing so you could actually a situation in which someone comes in and says and this is you're not going to have a claim generally that i have a diagnostic code four point six three and diagnostic zero seven and you know you're going to have a claim that says i have something wrong of me and as a result i am missing work or i'm going to the hospital frequently and that evidence will beyond the the medical official examiner and rating official to try to figure out whether that symptomatology of that experience can be fit within a particular disability and if so whether that rating for that disability addresses it and if it cannot three point three two one schedule or extra schedule or relief may be afforded so the concern you have your honor generally may not be something that pops up because the system may be used very often but it may pop up some but again you have to have a system that works for everybody in this court said that in numerous cases sears being the one example where  you have to interpret the whole system but the problem is under the hypothetical the system is not working very well or the combination isn't adequately reflect the degree of disability i'm not sure i mean we have a system that's been applied for eighty them of both medical examiner to take into account you know the effect of the disability on the person's life and the rate or who's whose whose is who is really out to try to see if you can maximize the benefits available to the claimant i mean a lot of times we stand here and and are subjected to suggestions if that's not the case but that is the mission of the agency so well that what i'm suggesting is that when when confronted with this a situation in which the claimant has demonstrated that he experiences frequent hospitalizations or misses work but not sufficient enough to meet stands of four point one six the rating official the medical examiner may very well resolve it through the government's interpretation of three point three to one by associating that frequent hospitalization with a particular disability instead of having to resort to argument that it's really the combination of disability in many cases it may not be a combination of of disability that if you look at something hard enough you could probably identify the major cause of the frequent hospitalizations that may very well be that that is sufficient under three point two one or that particular raters in cases of it to provide an extra schedule a benefit in that case and what we understand over to be arguing here is not withstanding that possibility because the johnson case read the plain language of three point three to one as it did there should be some sort of new sort of step in the review process that takes place after everything else is done these  individual disabilities and after or point two five is applied to come up with a overall combined rating and there is some sense that at that point that is still insufficient there should be another looksee at the question with the idea that well we didn't capture the  seeking i argued johnson but i but i have the benefit of hearing the question well i was sitting there able to open the decision and he had a ten percent heart condition and  ten percent need condition which i think he had it another ten percent rating related to the via lateral effect of a bilateral rating so i think he you had either three ten percent ratings or to ten percent range plus and you know the  if they had taken the next step and had a paragraph at the end instead they sometimes article three tells us look having the facts you know we're not here giving hypothetical opinions of things we  i understand your energy and i'm sure that part of dan's why i love seventy two ninety two d and i will reference it every time but i will but in johnson they stopped after they determined the legal question which was did the plain language of the regulation allow for consideration of extra schedule a relief under three point three two one two for the situation of combined disability and certainly we didn't really we didn't argue in johnson that it didn't our position and johnson was it could be interpreted both ways and we were looking for a house with a difference front but that didn't come so here we are we revised the regulation consistent with the way we always interpreted it we think it makes sense it's consistent to answer an earlier question i think that well if you had referenced a line from the room making about consistent with the overall system in an example which is referenced in a footnote in our brief is effective date everything about effective date generally geared toward a disability so you know that when you get the award for the disability you that's when you look to see the effect of they but when you're dealing with a combined rating that may be added later and the combined rating is a result of multiple disability which may have different effect of dates when they originally were awarded is i understand perfectly your argument about two million claims you have to make things work for everybody but of course the constitution flies to each individual and so arbitrary and capricious put up at some point for an individual and that's the way it is i mean that's my position yeah i mean i'd like to use my rebuttal time to give you a hypothetical it may be way too late i understand however before i'd get into that i'd like to respond to judge those question about the outcome and johnson that i'm not sure it's particularly relevant here but i was mr johnson's counsel i took the case back below and mr johnson was able to establish service connection for other multiple disabilities and was eventually ordered to total rating based upon the employ benefit of that backhanded compliment but i don't think it's my back it was a compromise maybe it was just the way i perceived it i'd like to give you a hypothetical of a veteran who has service connected for post traumatic stress disorder with a seventy percent rating he doesn't meet the one hundred percent schedular criteria but he also has from his combat experience tinnitus the rating for tenet is under the v a s rating schedule is ten percent there is no criteria if you have it you get ten percent if you don't have it you get zero but in my hypothetical this veteran has other symptoms from his finances the ringing in the ears becomes a distraction at work it becomes a frustration it aggravates his symptoms of post traumatic stress disorder it creates a situation in which the constant ringing in the ears prevents him from answering the phone it prevents him from making calls it prevents him from being able to hear and interact with other normal or it panics him that i was getting there too it can go through the whole series of triggers for the symptoms of that other service connected disability and what nova believes is arbitrary and capricious about the v a having a regulation that clearly is extraordinarily beneficial to veterans it is predicated upon doing justice when the rating schedule is inadequate in order to accord justice you need to look at the totality now the v a in my judgment hides behind the notion that they want to integrate this with the very thing that is the trigger to consideration which is its rating schedule doesn't work and  perfect example ten percent is not adequate in my hypothetical veteran situation to compensate him adequately and that then requires the consideration of the totality of his service