united states court of appeals for the federal circuit is now open and in session god save the united states and that honorable court carpenter appearing on behalf of mr michael youngblood the veterans court in this case formed a panel to determine whether the multiple service connected disability that are defined as one disability under the provisions of thirty eight let me see if i can understand where we are if i understand correctly it's agreed that t d i you can serve as a total disability but only if the t d i you grant results from a single disability rather than the combination of multiple disabilities is not correct that is correct and your theory is that the single disability is the kidney related disability that the issue as presented before the veterans court could not have been granted under the r c is made with was not the argument that is being presented before this court however reason to go before a panel but there was a clear reason for the best friends court to have found that in accordance with the belief decision that the board had not explored no matter when the ratings were made to determine whether or not there was another combination of disability that could have resulted in an award of special monthly compensation under  and the veterans court instead of addressing the issue that they said they form the panel for concluded that the board had not error in finding that the appellant was not eligible for a special relied upon the secretary's duty to maximize benefits and the fact that they had previously held in the bradley case that there was no or this is yes just or i'm having a little bit of trouble following are sort of recent and represent some change to understanding of the law so these cases are sort of long settled and yet nobody asked the veterans court what you're now asking us to do when they feel like that would be  to have done that other than to recognize that that was the board's obligation to do that under the v a s duty to maximize and the prior holdings of the veterans court in a presidential opinion and that the obligation was upon the veterans court me upon the board and the board determine only that the t d i you was not based upon a single disability and therefore secretary should i have looked to these other disabilities in order to maximize my mystery i must benefit and the problem is you want us to tell the veterans court erred in not doing that but you never asked to do that or in any way raise this issue and we are a court ever knew and we review what the veterans court did and i'm kind of confused how is it that i should find the veterans court erred in not deciding in your favor an issue you never raise because the veterans court had resolved this issue and that it is comparable to a charity type violation in which the veterans court is deciding the case on basis other than the bases made by the veterans court now this is not a chattery situation to be clear but this is a situation in which the veterans court had controlling case law that require board to take specific affirmative action to review to determine what regardless of the order in which the disabilities were made to determine whether there was any combination that would do that in your honor i would certainly advocate for that position but that is not a interpretation of the be by the court however this duty is based upon a regulatory state of the policy that appears in the a regulations of three point one of the thirty eight and says that it is the secretar obligation to award every benefit that is available under law with consideration of the interests of the government that's not incompatible with the interest of the government so i would have to say that under the breath of back statement of policy that your statement would be correct ok yours or your ronald time do you want to say that yes your honor i would thank you very much  not it's been raised by the veteran well your honor i can discuss what that duty is and also what the actual if applied here what would that mean i can do both of those for you certainly this court has looked to the question of here we're looking to see does the record reasonably raise this issue and certainly it does not and the reason for that your honor is if you look at the bumi case what's interesting about is on page two  if we're looking only at the facts of this case and not concerning ourselves with the jurisdictional question waiver issue then let me just ask this of ninety nine he was rated sixty percent disabled for the kidney disorder two thousand and five he was rated eighty percent disabled for the kidney disorder he's likewise and then of course likewise had increasing ratings for the need to sorters throughout the same time period the  of the schedule that exist for such ratings why wouldn't that give rise enough to put the secretary on notice that the secretary ought to consider whether the kidney disorder may act as an independent basis for t d i you know why isn't that enough you've got an eighty percent disability rating for a single disability and you've got a request for t d r you at the same time why isn't that enough under the record to put the secretary on notice that the secretary ought not to just evaluate the combined need just orders were which clearly got in the t d i you but ought to also separately consider whether he's entitled to t d i you under the kidney disorder because it would create the opportunity for the s n c payment yes ron and that's exactly where i was going with here if you look at appendix pages fifty seven and fifty eight your honor and what this is is this th evidence of employability from two thousand and two the discussion here is how mr youngblood was forced to disability retire from the post office because he couldn't stand because of his niece and that's on a multitude of medical problems the veteran was no longer able to able to work so the record evidence here shows that it was the knee injury a multitude of medical injuries caused him to be on employable eighty percent rating the shuffle certainly is evidence of a severe disability is not evidence itself of unemployed ability and as of course that in jackson to have an implied t d i you claim there must be s board failed to comply with its duty to maximize and yes your honor i agree with what i'm discussing what i was discussing before the question was the facts something that you should not be looking at or making a determination on just wanted to answer the question is why i was raising it but yes was your obligation to raise this issue on the part of mr youngblood absolutely there was instead he that there is no obligation on the part of the veterans court to maximize that is that as opposed to the board it is an obligation of the vetter of the department of veterans affairs which would be the board not the veterans court itself which is the court your honor i would agree with that has any case addressed that question assist in looking at all of the different combinations of disability that could have resulted in t b i you because it has a direct impact on s m c that to me sounds like a legal question is that your view that whether policy statement that says that the v a is going to try to maximize benefits for veterans and what mr jealous appears to be arguing is that if a veteran does not receive the benefit he believes  never did undertake an analysis of whether the kidney disorder which at the time was rated as an eighty percent disabling disorder might have been a sufficient ground unto itself to conclude t d i you  can understand why right because the combination the multitude of his different illnesses and disabilities clearly put him over the limit and so the board just didn't stop and say would any one of these individually do it because the multitude did because i'm sure at the time the secretaries wasn't contemplating the impact that decision might have or not have on s m c they were contemplating t d i you and he clearly qualify for it when you added everything together but they didn't break it out to decide whether each thing individually or any one thing individually would have been enough and i think he's saying they had a duty to do that and maybe it's pursuant to believe but in any event that sounds like a legal question to me whether the board or the secretary has a duty to actually look at each thing sort of sympathetically for the veteran to look at it in different combinations to see what might also have qualified him individually for t d you are you not just sort of all together that that sounds like a legal question it's sort of like a duty to assist not was it fulfilled in this case but what is the actually think the way and you can tell no doubt from my questioning it's not like i don't wear my heart on my sleeve i do all the time so you can tell from the nature of the question that i think he's raised a legal question but my problem is i think he's racially question appeals that he didn't raise in front of the veterans and i think he's complaining about something the board did wrong and i think he had an opportunity to raise that in front of veterans court and i just don't think you can ask our court to look at this legal question when he didn't because what we really need to do when it comes to legal questions aside whether the veterans court erred in how it decided it and you know the veterans court didn't get a shot so i i get it in today i think this is a legal question which is waived now here's my question  you does that mean we dismiss or we have firm he has raised a legal question that would normally put me in the affirm and category as opposed to the dismissal category because it is a legal question the fact that i'm resolving it by virtue of waiver seems to me no less needing to be in the legal category i e affirm and rather than dismissal do you have an opinion over whether a decision on the ground of waiver somehow  let me just ask you two questions let's let's return to the chair right that there was a duty on the part of the board to maximize benefits and that the producer on your rebuttal and i was asking you the question of if we assume that there is a duty to maximize assume that you have an argument that the board violated the duty to maximize by ignoring the kidney disability why is your argument not forfeited in any event for two weeks one discord i believe the answer to that is the basis of the decision made by the veterans court the decision by the veterans court was a conclusion that the board had not aired and they finding that upon the case law before the veterans court as early as this is this a drain a so are you saying that as long as there's a legal  argument or a legal question is raised that this court has jurisdiction to hear that argument for the st time on appeal as long as it's a legal argument i  obligation on the part of the veterans court to ensure that the secretary makes his decisions in accordance with the law and that may be their case but but that point should have been made to the veterans court it said that it was the v a s policy to consider s m c where a political in two thousand and eight in bradley the veterans court expanded that by noting that it was the v a s policy to address those issues and that it made clear that a claim was not required to be made by the veterans that when eligible as eligibility became  on the basis of the record that there was an affirmative duty on the part of the veterans court to adjudicate that issue and apply all of clickable provisions of the law when the matter got to the board on review on appeal and that simply didn't happen in this case to the contrary the better the board narrowed its consideration as judge more correctly pointed out to simply say that in two thousand and three our only basis was the knees and that didn't have a single disability that could be rated as totally disabling under the t d i due regulation however in this case your honor it wasn't until two thousand and fifteen more than a dozen years later that the v a corrected the fact that they had assigned in the national rating for the kidney disability of zero percent and they corrected that to a sixty percent rating going all the way back to january of one thousand nine hundred and ninety nine an eighty percent rating in march of two thousand and four and a one hundred percent rating in september of two thousand and twelve the statement of policy that the secretary himself wrote at three dollars does not say what the government said that the secretary will try it said that the secretary had an obligation to render every benefit that was available under law this benefit was available under law when the matter went to the board and the board made a decision mr comfort that that may be the case and you may have a and interesting argument but this is in the appellate court we hear appeals we have to have a question before us to decide and i do question that you bring up you bring up to us is not one that we can decide because if there is nothing to review here there's we can move along there's nothing here  i have to respectfully disagree on or this is either a system intended by congress to correct mistakes to ensure that the veteran gets the maximum benefit of a level under law based upon the evidence  record and that it is the obligation of the veterans court to ensure that that happens if i just finish the thought it is the obligation of this court and its rule of law jurisdiction as well as its interpretation of statutory provisions and regulatory provisions to determine whether or not the veterans court made its decision in accordance with law which it did not