briefs without oral argument in the argument list will hear argument first in conley versus department of veterans affairs appeal seventy forty nine from two thousand and seven mr carpenter welcome back good morning please  relief from an appeal from the board of veterans appeals the issue in this case deals with the difference between a finding of service connection and the right to service connected compensation mr conley believes that there is a difference between the two and that the first is a predicate for the second and that under thirty eight u s c section one o five a congress has provided a method for lowering the burden on the better and to establish that a condition incurred during service either a disease or injury is presumptively service connected now i understand you're making the argument that either implicitly or explicitly or perhaps some combination of veterans who are rendered in a temperate ation of section one hundred five said the court well number one mr conley presented the issue below and pointed out and the by the veterans court of the statute and i would think we plainly do have jurisdiction if there was not such an interpretation by the veterans were you know i think we would not have jurisdiction over that contention and it is position that they did rely on an interpretation of one of five they found the whether they relied on interpretation isn't the same as making one themselves know that they themselves did not they were live upon an interpretation of one zero five a which said that one o five a as a statutory presumption would not be outcome determinative in mr connelly's request and it and that reliance was based on a ruling of panel of this court in the shouldn't case i would they prevented mister sched excuse me mr conley from getting interpretation of one of five day when he specifically raised the misinterpretation that it was not a  presumptive statutory presumption for the right to a finding of service connection material we only have jurisdiction if i suppose if the veterans court rendered an interpretation of a statute were regulation and it looked to me like in this case there was no veterans court interpretation of a few it was a veteran's court recital of this court's interpretation of that statute and it would seem to me that if that's correct we don't have jurisdiction over that contention what is violent standing out of that this court's jurisdiction is implicated when the issue is presented below and it is not addressed the the way in which it was a d was in my view to rely upon a misinterpretation of that statute that the statute did not create an outcome determinative difference in the request for revision that was mr conley's issue before the v a and before the veterans courts it sounds like you disagree with the shouldn't case no your honor i do not disagree with well probably due to screw the judge but that was not the issue the issue was what benefit is derived from that presumption and the court in this court in sched did set that you've got a presumption that the disease or injury was service connected if it was incur received and how does that constitute an interpretation of one o five by the veterans court as opposed to merely an application of an interpretation by this court instead  failed to afford him the benefit of that presumption and the court said that even if the board had misinterpreted that statute as the v a conceded that it didn't make a noted in service should have been found to have been service connected they did not make that finding instead they and the court below relied upon three point three zero three c of the v a regulations to say that it was a personality disorder and therefore it was not compensable that effectively negates the benefit of the presumption that has got to be a misinterpretation of the statute because congress either gave veterans the benefit of that presumption or they didn't and the v a either afforded them the benefit when they adjudicated one thousand nine hundred to do or they did not the effect of the court's action below was to rely upon an interpretation that said that even if there was a mistake made that mistake would not have affected the outcome that is a misinterpretation of one hundred five day because one five eight does affect the outcome because he is entitle to the benefit of the understanding that as the an argument that what if what occurred in one nine hundred seventy two should have been realized to be depression rather than a personality disorder was that not one of the arguments that you're pursuing on appeal but no not entitle to the service connected in this case there were several different diagnoses made during service which included depression and also a bird who did unstable personality but those well you say there are several different diagnoses but it seems that the view held by the v a is that the initial diagnosis of depression wasn't the correct diagnoses that the personality disorder was the correct even if the diagnosis was personality disorder bapak personality disorder is not per se a bar to a finding of compensation the bar to the benefit of compensation under three point three zero three c is a preexisting disability from a personality disorder there is no such finding in this record that what was noted in service was either a preexisting personality disorder or that that preexisting personality disorder had been disabled in prior to service counsel is this case in this regard with your arguments with regard to one o five and three and three c it seems that you're making the same arguments today you made in the ab's case a month ago which we rule thirty six so i'm just wondering the difference in that town and i do appreciate the difference because i'm not getting it out the difference is that mr occurred during the service is related to his post service disability and that his post service disability is currently diagnosed as major depressive disorder with psychotic features and he's been service connected for that this ability since  two this differs from is your abs where there was no finding he has never been determined by the v a to have been service connected so we have a different circumstance that if they decide that the service connected now doesn't mean it was a that what the v a should have done in the first instance was to make a finding in title meant to service connection that he had established the right these of the of the presumption under one of five it that the psychiatric diseases leg and then later they decide he's broken his leg the second diagnosis clearly replaces the first is not that he both fractured and broke his leg and that's of the but in this case they decided as a matter of fact that first there was evidence of depression and then after further analyses decided no it was a personality disorder and so i don't see how we can read one of the five when they say oh we we erred when we said depression it's really a personality disorder how we can read one hundred five is guaranteeing him connected based on something that at the time they said it was erroneous because you're dealing two separate questions the question of the distinction between personality disorder as compensable and non compensable is a separate question from the question of service connection one of the five a does not deal with the right to compensation eleven then deals with the right to compensation three point three zero three so using any diagnoses made even if later corrected automatically guarantees you will want to five percent of any disease or injury it does have to has nothing to do with diagnosis diagnosis is not relevant under one o five a what is service connected is the disease or injury which is incurred in or aggravated during service of the disease or injury that he is the better to get the illusion of a presumption or does it get a real presumption and the reality of the presumption is the presumption deals only with disease or injury eading disqualification for compensation is a separate issue the significant difference is that if they had found him to be serviced and that that for a psychiatric disability other than personality disorder but that he wasn't entitled to compensation because based on that seventy two exam he only had a personality disorder therefore you couldn't get compensation as soon as he had a diagnosis for something related to what happened in service that he was service connected for he would have to go back and reestablish effective date which is what the claimant seeks in this case the claimant must demonstrate that the one thousand nine hundred two decision was the result a clear and unmistakable error and if he's not going to demonstrate that this decision was result the clear and unmistakable error are there based upon the war facts and at the time of the decision then he would not be entitled to an earlier effective date under the law i'm interested in whether we have jurisdiction to decide anything here so to say that he has to lose on the  he seems to be arguing if i understand it that somewhere in the veterans court decision is an interpretation not an application but an interpretation of section one of the five fell the court decision that only applies to the second of the three elements set forth in the truck i don't understand what your position is there isn't a legal issue here there isn't a statutory interpretation issue here based upon an oral argument i would say now there isn't i'm not worried about the ordinary like some kind of lawyer when you look at the decision is there is there interpretation of a statute embedded in the veterans court decision or not i do not believe so yana elsley why not when they is court would not have jurisdiction because again they they determine that that statute counsel when see here when the veterans court doesn't always you know put it in bold and all caps for us were interpreted in one zero five and sometimes even though it's application of a lot of fact which we have no jurisdiction over it's clear from an application of law th fact that they are in fact misinterpreting a regulation or statute that's the only way they could possibly apply it this way so this is i think something that i've seen a lot of difficulty deciding which is when it i an interpretation issue and when it is which we can of course review and when is that out location of law or fact which we can be used for help me decide where this case falls and in that gray area in your honor i have a what i could see that i would have bit of apply as part of the factors now if the decision that one hundred five a does not apply is sufficient to constitute a statutory interpretation and i'm out the case of lot of fact and not application of law to the case a apologize if i misunderstood the court's question but it it appears that the governor from the government's perspective that what they were simply saying is that one zero five eight does not apply and this court therefore at and because they have decided that is that one of five a does not apply therefore does not interpret in the statute this  it when you agree that there could be a circumstance where the veterans who are first interpreted some language in a statute and then based on that interpretation said that statute doesn't fit this case is irrelevant to this case yes your honor there could be those cases but we don't see that in the veterans courts opinion here right well we don't see them actually interpret in language in the statute what they find is they read this court's opinion  shedden about how the presumption should be applied and when a presumption want to buy they apply and they do not find that that particularly at the one hundred five a presumption applies in this case based upon shedden based upon the facts of the case it's not based upon an interpretation of the statute itself but you would also agree with you when when someone says that statute doesn't apply here isn't that an interpretation of the statute to come to the conclusion that it doesn't apply means that you concluded that this case and its subject matter is not within the purview of that statute and therefore you are necessarily having to make some sort of interpretation boards where you get into one of the be within our jurisdiction the analysis of the statute would have to be generic and divorced from the particular facts of the case at hand not entirely to worst because i entirely divorce it it's unclear exactly what what sort of opinion you would have in the case it depends upon the measure of connection of the opinion to to the facts or the notation of the facts to the opinion helpful you seem to say if they interpret language that probably means it is within our jurisdiction ok that's a fairly simple test but but not very often going to be helpful because it doesn't occur by my recollection very often is there any other criterion that you can suggest other than where they construe particular words or phrases from the text of the statu claimant has asserted that one of five a presumption entitles him to a presumption that a disease or injury service connected however in this case the issue is whether or not he had a disease or injury within the meaning of that statute not within the meaning of one of five and so in this particular case one zero five a presumption does not provide that a particular condition is presumed to be a disease or injury within the meaning of the statute one of five a is only a presumption which entitle few true presumption of service connection for disease or injury which you raised no problems here ther is no disease or injury yes honor that's correct and that is why i want to doesn't help him in this case that is correct on he seems to argue that there should have been a diagnosis of psychiatric disease or recognized psychiatric disease because there was ample evidence both from the army records and from the v a records that the veteran at the time in question had such debatable to have a clear on the mistake of error and in this particular case the records do support the nine hundred seventy two diagnosis of depression one twenty seven and one twenty eight of the administrative record one fifty one one fifty of the administrative record both full psychiatric a valuation for mr condit and this person a little disturbing you see you're saying well it's clear isabelle that in seventy two he had a standard psychiatric disease properly diagnosed but only about a year earlier he had a mere genital personality disorder which is not a psychiatric disease and therefore he doesn't deserve any compensation that that's a little hard for me to to reconcile those two things where the time period is so sure well your honor initially in one thousand and seventy one when he was first admitted to the hospital they the diagnosis admitting diagnosis without a full psychiatric examination was that he had a reaction depressive acute but that they had noted at the time a pretty morbid personality and disposition and this is at one thirty five of the record and they also know the degree of the result in psychiatric impairment was  attains a full psychiatric diagnosis that's where they determined that they first make the determination that he's suffering from mostly unstable personality with strong passive aggressive features and they note that that's manifested psychiatric examination they note is is one of the manifestations of the what is his what ends up personality disorder also when he's proposed service and there's a regularity on that one i'm right now at one twenty eight in the record mostly unstable personality with strong passive aggressive features chronic severe manifested by emotional liability immaturity three suicidal gestures depression and anxiety that's correct your honor those are the manifestations of  unstable personality with strong passive aggressive futures chronic severe here and it did ok i'll tell him if he's manifested it doesn't matter what the source it's of his depression clearly they're saying he has depression it may by his personality disorder but is that relevant i mean if i have a broken leg does it really matter exactly how i broke it it's still broken the broken a leg analogy doesn't work very well because depression can be both a symptom and a diagnosis there can be and if you under the v a regulations and the a p a and psychological association guidelines there are there are specific diagnosis for at least from one nine hundred ninety two going forward that he clearly deserves and what we're really here over is looking back that's why i thought this was a cute case to begin with and mr carpenter suggested not so much to really interpretation case because i thought why we were here today was to figure out whether now not the government admits it made an error in one nine hundred seventy two he was depressed they've admitted that the question is is a clear and unmistakable and that's the way i was analyzing this case is that the way you were analyzing when you came and your honor that the the point is that there's a difference is just saying depressed is is not sufficient i mean when he was ninety ninety three the government has admitted that it made an error and that he was in fact depressed in seventy two right otherwise why else would they be giving him in one nine hundred ninety two going forward to benefit because it's a separate it's a separate kind of depression i mean there was no indication in the one nine hundred seventy one thousand nine hundred seventy two records that he suffered from the die we had he was we had notations in the record arthritis and we also had arthritis which she was later diagnosed with those are two different conditions because there are different kinds of arthritis just like are different kinds of i want article committed why would the government be compensating him starting in one thousand nine hundred two for depression and he's been out of the service for how many years it can your honor that depression can still be service connected if manifested at a later date that wait let me get this straight he was depressed always in the service we all grew that he was just in the service all the notations indicate that so then twenty years later he's depressed again and you're telling me it has something to do with when he was in the service but it's not the same depression yes it's  a psychotic depression which is a very different manifestation from simply being depressed i mean a cycle major depressive disorder with psychotic features we're talking about something that's listed separately under the v regulations a separate condition that the the americans i mean depression would be and would be been titled to benefits back to seventy two if that if your premise that you're articulating right now that if they separate depression is defeated in some way would he be entitled to the benefits going back to seventy two does your case interpol on that issue no because the one hundred seventy different decision would need to be the result of clear and unmistakable error for him to be entitled to an earlier effective date would have a curious diction on that issue  second guess the assessment of these various psychiatric type reports i would say this court does not have jurisdiction are factual type issues air or aren't all the issues factual at least in this case maybe there's some hypothetical case where they'd be legal but it seems to me that if you would have to in order to find theory undertaken error in this case you would have to say that the veterans were grossly misread the psychiatric documents and that it was so growth that any responsible  members would have had to come out with the opposite result than the actual result imposed that sounds could have only factual to me it could be happily factual although q claims can also be based upon  this man's case if there was a legal question with regards to one of five a yes there would be some but we have previously discussed the right with your mr kirchner's rebuttal two minutes that the examiner concluded the question he had in ninety eight in the ninety's is the same depression he had in the seventy's contrary to the government's argument is that someplace you might start well ye thought it seemed to be that what the government is doing here is trying to pretend that there is a difference but that they have the right to distinguish between what happened after service and what happened in serves it there are really two separate sequence will steps the first is what happened in service was there or wasn't there a disease or injury that is distinct from the diagnosis of personality disorder only because even if that diagnosis a personality disorder is accepted as what he was suffering from during service that is still a mental and that's entirely inconsistent with the v a general counsel's opinion that says even if you have a preexisting congenital defect such as what night is big mentos and it becomes aggravated during service you're entitle to compensation  that that is in our reply brief that is a i ming opinion of the v a general counsel going back to the one nine hundred eighty five which explains the fallacy in that argument there wigan lation by their own interpretation their regulation does not say that it is not an absolute barque the compensation it is a bar the compensation under specifically defined circumstances and those circumstances were not present in this record in  seventy two what was present in this record was evidence that he had a current or has this ability at the page eighty nine the record  conclusion of the one nine hundred seventy two example which create was the basis for the decision in this case that is being contested says that this time his personality features not his personality disorder his personality features and adjustment problems seem to constitute a mild disability for him primarily in terms of him getting along with others especially regarding employers now that means he had a disability at that time by the v a s own medical evidence even though on the preceding page there is a diagnosis of personality disorder passive aggressive personality the fact is what m connelly was entitled to and did not receive was the benefit of the presumption that the psychiatric disease noted service was entitle to a presumption of service connection that would have put him in a different position when the a made it fact finding in one nine hundred seventy two had that they apply that presumption what the court below said at the bottom of page five of its decision continuing to the top of page six was inside that the presumption of one zero five eight only satisfies what it referred to as collusion element two parent thetic lee encourage or aggravation during service and that is not outcome determinative but it is outcome determin in this case and the question of law that is presented in this q claim and in this appeal is what is the benefit that is derived from that one of five a presumption all right i think we have your position