they a total of six cases two of them are being submitted without oral argument reese later today they are appeal number two thousand and seven dash thirty one eighty two leadbeater vs merit system protection board and appeal number two zero zero seven dash fifty one twenty five glaude e versus united state the four cases on the argument list will of lead off with the roper versus the department of veterans affairs before calling that case the court wishes to acknowledge the presence with our great thanks of the judge denise coat from the united states district court for the southern district of new york who is sitting with us today and tomorrow is a part of our program of having regular visitors from the district court sit with us we thank her for her efforts and her generosity to help us out and with that we will hear our argument in appeal to zero zero a wise provides for an exception to the combined rate process but more importantly the plain language of the regulation dictates that a additional disability be rated as part of the original connection service connection has already been established the underlying condition is a predicate requirement for the additional disability i thought it was a position of the government that the  fect of regulation three ten was to provide for the very concept of secondary service connection it's true that the initial disability was previously established and the new fact was the related depression that aggravated the impact of the hearing loss in terms of employee billeted for example and that therefore it has nothing to do with ratings it only authorizes the concept of a secondary service connection what's your response to that in terms of how that condition is evaluated for purposes of time so they will but they say yes but only for purposes of service connection of the second disability has nothing to do with ra connection between the original disability that occurred during service and therefore with service connected without doubt and the new condition here the depression is a liability not the amount of an award and not how you combine the two disability to determine a rating that then helps to determine the dollar amount for an actual sort of rating precedes calculating the dollar amount due for compensation but it still separates the second of the third of the three phase liability service connection rating and then final dollar determination on the war front and the question here is how do you determine that compensation do you take the fifty and the fifty and add them together as part of the save or luck what i'm calling loosely liability has nothing to do with the rating issue and that once liability is settled and you're now trying to determine percentage really you're under the other regulation four point two seven or whatever the about the what is being compensated for is the injury to his hearing which occurred as a result of acoustic prompt i thought your whole case was that you want one hundred percent relief because you have too serious regulation governs the radioactive when you have two separate conditions or impairments or disability and you have to somehow calculate their combined effect for four point two five depends on the word disease that's really used only in part of the discussion under subsection b doesn't the table as a whole apply to disabling conditions not necessarily diseases it certainly does as it is generally law the question how or becomes how to treat a condition as part of an original condition when the right to compensation is established through three ten under four point two five is our position that that deals with multiple injuries or diseases which occurred service which  be for those individual edition so you're saying all secondary him param and our government exclusively by three and four point two five we have no application except in the case where the multiple applies and it has a whole different slant to it so it seems to me you have to convince us that he is wrong and that you are right namely that four point two five is the sole regulation there's a line of what does it say somewhere in four point two five secondary condition do you think be directly to the feel i mean at three point one three three point three one zero actually talked about secondary consideration how they ought to be secondary fish and ought to be treated it seems to me that if anything think more directly to the fish it would be three one zero i'm not suggesting that that doesn't mean porcupine doesn't apply but your statement was forty five would be one example so for four to five simply by splitting terms so that when there are two disability resulting from a single cause which is exactly the case where you have a second your service connect here we clearly have two impairment one man or one hearing related but by the language that you rely on we require that the hearing loss he experienced an active duty of thirty eight u s c eleven fifty five which is the statute that authorizes the v a to devise a system of ratings and to acquire that system and created it's a regulation is the government's case the v it but saying that injury sustained either the time of active military duty or the time of war is her pensacola they don't say anything about secondary service commission which is why the v a promulgated three point three one zero and three point at first and that it's good for all purposes you know for all purpose of language is kind of what i'm playing and i are you think testing that the absence of the for all purposes language take three ten out of the purview of affecting rating stages in the process and this is the stage where you determine whether it disability is competitive or not whether you determine the amount of compensation in fact if you look at mr roberts argument on its face it doesn't make sense because where do you get the fifty percent that mr grover would reach it is conditions if you don't turn to some other provision certainly the fifty percent really doesn't come from a frivolous three one zero that never a thing and even if three one zero work to create an exception that in secondary condition you wouldn't apply four to five it doesn't say what you do apply in the absence thereof and when that bring us to a deference situation for disabilities and will receive a combined really were over see they were hundred percent ray that does not reflect his actual civilian area as interpreted by the v a simply because language exists that has raised the question before as to how you should be treated when there is this tension and clearly this tension exists and they have to says treat him like everybody else but three point three one  it be that if someone in due to a grenade lost an arm and a put their right their rating terminations ought to be covered you would acknowledge by four point two five because neither of those is a secondary condition so it would be covered by four point two five and they wouldn't necessarily get fifty plus fifty i'm just pulling numbers out of the air they would get eighty according to four point two five yet if somehow the injury is a secondary condition of the original injury they get one hundred percent i guess i'm having trouble understanding how to discrete injuries ought to be rated under the table and get less than two related injuries are you following me t the fact that it conflicts with four point two five should not be on the verge of the rover or anyone else it will be situated who has a disability resulting from a service connected disability just about thank you very much mr edmund could take the appeal under advisement