before we get to that business we have some other important business and i understand the judge clevenger you have a few motions that you would like to make thank you that was i mean just have two motions ok you may be again if lisa kirk and carpenter appearing on behalf of mike dollars the issue in this case is whether or not the veterans court heard as a matter of law by failing to require that the board of is rated under a general rating criteria by the v a and it goes based upon the severity of the symptoms the symptoms of major depressive disorder are much more narrow than the symptoms of post traumatic stress scheduler rating for the degree of disability for his psychiatric disability under this guy or on remand the rating assigned to the major depressive disorder was fifty percent there are two available ratings left under the or a hundred percent rating that's correct simply because there is a wider spectrum of symptoms in the diagnostic and statistical manual for the condition of post traumatic stress disorder than the more narrow diagnostic label that was given by the v a examiner of major depressive disorder spread her symptoms to the spammers in the fast or in terms families the degree to establish the degree not the fact and that's why the presumption of service going to give me the presumption of meeting the criteria under d s m is so important in this case because that presumption  is afforded by a rule of law created by the veterans court if that's the rule of law or to be applied then mr dulles and would have received the presumption and the burden would have shifted to the government to rebut that make the stand because that is not sufficient evidence to rebut the presumption the presumption carries with it a requirement that there be more evidence to a presumption that that assumes there must be additional eat that is proffered by the party who wants to overcome the presumption but we refer to presumptions all the time when all we're saying is that in the and the need for the koan presumption doesn't seem to me doing exists in a case such as this where all the diagnoses are happening well after the amendments of the regulation well i respectfully disagree  because the post traumatic stress disorder regulation a three point three zero four s f is the only regulation that requires specifically that the diagnosis of post traumatic stress disorder meet the diagnostic criteria there is no comparable regulation that says that for instance major depressive disorder must meet the criteria of d s m there is a specific regulation that my talks are as hard you're asking  respectfully i disagree honor because the follow the diagnosis made by the treating mental health professionals and the diagnosis was repeatedly and consistently post traumatic stress disorder in fact no treating physician no longer has any vitality what was served its purpose while the regulations were in conflict and needed to be harmonized the regulations are no longer in conflict they don't need to be harmonized so why do we continue to have a it's not appropriate in the context of veterans cases in veterans cases the v a is supposed to be acting in a way that advocates for the veterans this is supposed to be a non adversarial system here because that is a train or a violation if you follow that logic because that was not the basis upon which the board made its decision the board did not consider or apply the presumption now th had to apply it in the sense that the board was required to apply the allegation the a birman of error made by mr donaldson to the veterans court was is that the better the board err by failing to afford him the benefit of the presumption under cohen when it went to the veterans court the veterans court said that they could apply it in the first instance and i'm saying that in order to apply the coleman in arguing for reversal of the board's decision persuaded the court therefore the court looked at the cohen presumption and i believe they missed applied the seventy one zero four a the board is obligated to apply all potentially applicable provisions of law the kohen presumption was a potentially a political provision the board did not apply or the failure to apply it violates the board's mandate under seventy one zero four eight for the court to then make the decision based upon the affirm and of error made by mr dollops and decides it then upon a ground other than the ground decided by the disagree with that you my understanding of the way that disability rating works and in this case in particular is that the v a looks at the collection of symptoms in terms of their impact on occupational and employee a major depressive disorder diagnosis and so we don't we can't possibly know whether or not there was some other symptom that they didn't really even consider that they might have factored in that's not my understanding on or if this is one of the record so i'm cautious about this but but the reading actually says this collection of symptoms diagnosis and t v and d v d claimed is p t s d fifty percent rating the v a is looking at all the symptoms that have been discussed in mr dolphins medical history there are dark everything that is documented that is a symptom that he's experiencing is taken into account in the rating and i should add just just for the record that mr dolphin although his psychological condition has been rated at fifty percent he is currently on what's called a total disability for individual unemployability so his rating is actually he's getting one hundred percent at this time because he's been rated based on  whether there is ever you know in a in a speculative way a possibility that that t d i you one hundred percent could change in five ten or twenty years but the symptoms what can what is not going to change are the so i understand the point your honor is making and i would say that we could not see how mr dawson based on an understanding of how the v a rating system works where he's been rated analysis but you didn't really give us an exact citations to all of the criteria that they employ and even now you're not quite able to tell us that you're sure he wouldn't get any benefit is we cannot see how you could get any benefit for when i said i wasn't sure i was are going to mention the t d i you if you want to make it clear for the record that he's not getting fifty percent one hundred percent now i am not sure ultimately whether there is some reason t d symptoms v a in giving mr dolphin a fifty percent rating has looked at all of his symptoms collectively and rated them fifty percent so for him to have a different rating he would have to have a a change in his symptoms not a change in his diagnos looks at the symptoms that are our parents and rate those and rates those things that are under the d s m the symptoms can be different but you're saying that he as a person only manifests so many symptoms that's right and those symptoms have been determined to be fifty percent and they they decided that the symptoms put him in that major depressive disorder bucket rather than p t s d well that's what the examination that that is in the reparative pages forty five to fifty six ma determination v a s rating which is not part of the record but i have i have read says for his psychological illness fifty percent claimed diagnosed as m v d claimed as merits of the legal argument i'm confused by your other jurisdictional argument because clearly this is a legal issue he said there is a common presumption that was supposed to apply both at the board floor and it wasn't applied how is that not a legal issue within the purview of our jurisdiction it's not a legal issue because at base this claim is not about conan the veterans court  presumption well the board here did do that weighing it sympathetically ever referred to the presumption and just simply said we're not buying those diagnoses rather than saying we assume that  competing factual determinations which is something that cohen as it went on on page one forty eight of that decision not just in this is not apparent that is all that's part of the statement about the presumption but the continuing paragraph after that said look conceit clarification and v a can engage in a weighing analyses between competing diagnoses that's what that's what cohen said i think it's fair to say that when the board is simply looking at weighing competing diagnoses and that's clearly what's criteria and so how do you get over the presumption that you're supposed to assume it's you can weigh it for other reasons and say that you think that the second view was was more thoughtful more developed whatever but that's not the same as saying they didn't satisfy the criteria when cohen says we're supposed to presume that they did with board did not throw out or reject the first diagnoses for not being in conformity d s m criteria it specifically accepted that diagnosis and simply said that we find that the more recent diagnosis which was supported by p t s d specific testing that had a thorough analysis that explained the bases for its conclusion and had not gone through the d s m criteria but it did not specifically specifically did not say we're not going to consider this or reject it entirely what it ultimately did is engage in a classic factual determination as  diagnosis this is a hundred percent consistent with conant cohen specifically said that v a can see for clarification if if there is some if a clarification is necessary that's clearly what was the case here when you look at the examiners determination of pages forty nine to fifty of the appendix he talks about how the medical records up until that point was inconsistent d n a at that point consistent with color and this is what the veterans court said it at page three of the appendix sent the case back for further examination clarification they got that further examination clarification again consistent with not just cohen but also what the what the isn't it i mean you say well comment doesn't really apply here because they didn't really violate it and therefore you don't have jurisdiction but that's not really correct we have jurisdiction over the legal question of whether cohen was properly applied and but and your argument is that it w well certainly we would agree that to the extent tone is applicable it was properly applied that's our merits argument but on the jurisdictional issue the question that mr dolphin is raising here is still a factual question because dealing with the question of  it is true that there was a total rating based upon an employee ability a sock but that total rating is not permanent and that total rating may be taken away at any time court that adopts what the government just said on the record that when they evaluate they are evaluating for mr dulles and symptoms for post traumatic stress disorder in the more than thirty plus years that i've been doing this work that has never been the case and that in fact what the v a does is to compete are to use non survival connected conditions and those symptoms to detract from the rating because those are based upon a non service connected disability only if a condition is service connected not claimed as post traumatic stress disorder but actually service connected for post traumatic stress disorder color as the government suggests in fact what happened here your honour's is that there are various references to depression as part of the symptomatology that mr dallas and experience prior to his viet examination never in any medical record was a diagnosis made of major depressive disorder which is a different psychiatric diagnosis under d then major depressive disorder that was the first time that that diagnosis had been made and the first time that any doctor had said that mr dalla v a diagnoses from treating doctors did not meet the criteria under d s m the criteria under d s m is the critical piece and the reason that  is it your position that the presumption can't be overcome by evidence indicating that at the that the original diagnoses were fl that is certainly my view but i have to say to the court in candor there is no case law that addresses that this is a judicially created presumption that doesn't deal with the rebuttal portion of the presumption and obviously it would be of tremendous benefit to veterans to understand what they get for that presumption ok thank you very much