conclusive pathophysiology now because of v a s change its if the m twenty one the requires that both criteria be satisfied in order to establish service connected service connection for a medically unexplained chronic symptom illness me ask you question why didn't you ask that this case be combined with good men or at least argued together with good men at the same time  case your own are in presell the goodman case has this question in it but there's an there's a separate basis as well in that case we're also arguing that the medical examiner rendered an opinion that was not on an individual basis it seemed to us  that was the specific case or controversy whereas this was a cleaner challenge to the change to the m twenty one that was our thinking i mean except that you've got the jurisdictional overlay here that we're at half the briefing a spen offices which is truly where the rubber meets the road in the v a system that is where the millions of claims get filed every year where the over a million claims to file the every year that the gulf war veterans  contravenes the seventy one of four statute but be that as it may that is an argument that does not have to win the day for us to establish that the m twenty one provision is is binding on the adjudicators and therefore something of rule because it is taking away the individual word which is what is in the actual regulation and they just write and so but what if i view that is simply interpretive and not changed since there is a negative predicate at the beginning of this if i say you can't have peas or carrots or if i say to my children you can't have ice cream or cookies i don't think that they're going to go eat cookies and believe they're not going to get in trouble  so and then in the throes of litigation in two thousand and fifteen they decided through a series of e mails that are all part of the record that they needed to make a change and that change has the substantive effect of changing v a s policy th a veteran comes in and has to prove only one of these things are going to get there but the result is the same isn't that mean that it's no cash no credit no your honor i would say that your honor that it is not the same because what you in order to win under the reading of the play my plain language of the regulation before to to change the regulation before that if you have a doctor that says look we understand how this condition for example rheumatoid arthritis  because that's the example that in the e mails throughout this and we'll touch on and i'm sure in the present is rheumatoid arthritis he was able to meet one part of that because of the e mails and because of the change the substantive change now that a is it is a manual but it really is important i think your honor for me to highlight this manual it is my understanding that this manual is a bible if you will it is the manual for educators because of their of their workload because of the way this area of law changes the m twenty one is on an adjudicators desk or on of the aros desk and again this is my characterization of something and it is what they look at they are going to look at this  record your honor i would be happy to go and look for those if it is of interest to the court there are none of record the rheumatoid arthritis case it is really demonstrative i think rendered thousands  adjudications i am well i mean you're taking the position that we shouldn't be looking at the face of the regulation and how it's worded because from a grammatical standpoint you have a little bit of a problem there you're saying that we need to look at how they told everybody to interpret that regulation in the past and what i'm trying to understand is we have actual concrete evidence that it was interpreted in a different way there is not record your honor again i'd be happy to to look for some of those and some of those it would be in the court's interest ok i please the court i'll start if i may with explaining why the revisions here are merely interpretive and are not themselves substantive rules with the force and effect of of law the crux for you that it correct that this is not binding it is we agree with the characterization that it is binding on the regional office employees who are educating the claims but it is not binding on the board as we see and regulation one thousand point five and in the reply brief d a b points to the statute in seventy one zero four and references instructions of the secretary but the v a adjudication manual qualifies as instructions to that reason offices which are separate from the board and so it's not instructions to the board and in fact the instructions to the board language is referring to a term of art really that is a type of guidance that v a no longer issue and so in prior version of nineteen point five it did actually reference instructions of the secretary and that was removed the n b a stopped using that type of guidance and so now the implementation vs implementation of for the board to look to the manual as an as indicative of the v a s interpretation or the v a s interpretation but it would not be binding on the board and so that distinguishes this from  substantive role where the role as the court explained its plain should be is binding law on entities outside of the agency and certainly within the agency so here we don't even have the you're saying this is not a s rules well there's no inconsistency there your honor because we routinely seek deference look courts routinely give deference to agencies even in even more informal instances like our the supreme court's decision and our for example granted deference based upon an am a case break so the fact that we're saying it's not binding law is not inconsistent with us later saying that this is a considered a fair and considered judgment of the of the secretary on a given issue and and that gets back to the crux of the difference between substantive and interpretive the rule here is coming from three point three one step in that is the binding law that is that is interpretation of the ventilation because our deference on the relates to interpret in regulations you can't back in to chevron deference because mead makes it clear that interpretive decisions do not result certainly or certainly your honor this is an interpretation of the regulation in three point three one seven and we know that because if we just look to the analysis itself it's drawing from the language that appears in the regulations definition of a medically unexplained illness so we are taking the regulatory language without conclusive pathophysiology or actually ology and the v a is providing its interpretation that because as the court noted there is this negative  i get this or why do i have this or what caused this like parkinsonism rheumatoid arthritis the answer is always we don't know right we don't know so that would seem to be to relate just  because we know how your brain gets screwed up in one of these or how your nerves get messed up in one of these doesn't mean that we know anything about it that it has become medically certain well as your honor points out there are any number of because of problems in applying the undiagnosed illness presumption and essentially what happened was that in that there were advances in medical terminology that resulted in doctors applying diagnoses to collections of symptoms that had previously been undiagnosed so these are the examples like chronic fatigue syndrome from my algebra irritable bowel syndrome where there there was really no understanding of how the disease presented in the body there was no understanding of the actuality and so congress doubt that the same challenges in establishing access that existed for undiagnosed illnesses would still exist for these illnesses despite the diagnosis that was effectively a diagnosis in name only it was just a multiple sclerosis or other diseases for which the actually ology is on known and the v a has methods of determining nexus in those cases so it's not the case that every time a disease is unknown it's sclerosis for example is having symptoms and also has been identified there's been plaque in the brain identified and so you can see that at an earlier date and you can see as the disease progresses that the plaque is worsening  and so you can see that this is the same disease you can see that this is at progressing the way that multiple sclerosis would based on the medical understanding of the pathophysiology so it is there is a reason why the regulation says and etiology i'm sorry i am saying that there is a way you can give in given the known characteristics of diseases like multiple sclerosis even though it's not known whether it comes from genetics or whether there is a specific environmental trigger given the fact that the medical field knows how the disease progresses that does provide a basis for establishing nexus and this really gets back to the fact that in an interpretive rule that the agency is looking to the language of the regulation and as the court explained in sprain the in a substantive law you would expect to see the sort of policymaking analysis that we're engaging in right now where as an interpretive rule you're looking to the we will say it was a narrow limitation no reason office but that still is only one part of the viet the v a also includes the board and simply because the court said in spring simply because it isn't in any instruction to an employee is binding on that employee of the agency but that does not mean that it has the same force of law as a regulation would a true regulation like three point three one that which is binding across the board you're the language that  saying was just a mistake and we fell if it's diagnosable that that it can't be covered that is directly at odds with not just the statute the language of the statute but the purposes that you and you're just saying oh well that was a mistake we didn't mean it but by definition that would be and interpret it would be interpreted in your regulations be directly at odds with the statute well i think the way we describe it in our brief is not  mistake but it's a result from the v a s internal use of diagnosable is shorthand and while i agree that that is not the ideal way to make that point but it does get the job done and given the numerous law and you say gets the job done the question is does it get a job done consistent with the statute and i mean it makes it seem like you're you can you say using it as shorthand that's exactly the shorthand that congress was worried about well no your honor because the  employees were asking questions about when to provide a medical examination despite an existing diagnosis of sleep apnea so this was essentially even within the questions that were being asked there was essentially an understanding that sleep apnea itself is not a medically unexplained disease and so the v a in addition to noting that this does not qualify at for presumptive service connection and the ct need look no further than the plain meaning of sleep apnea to see that there is in fact a known pathophysiology and a known cause for sleep apnea so it would not qualify why didn't you just say that instead of saying because it's it has a diagnosis well your honor have perhaps been better but that's in the plain meaning of sleep apnea itself and again this is a that the life manual process is designed to be a flexible constantly changing process in which the v a is responding petition for rule making in which this court would then be able to review this court would certainly have jurisdiction over eight denial or partial denial of a petition for rule making and in that scenario that the petitioner would have already presented the agency is reviewable and indeed will be better assist the court with a better and more complete record in a appeal from a petition for a rule making or in that individual veterans case just to be clear you think that the eight to see it can't fall under five five to eight one yes we think those are exclusive because when you said some things in the view manual could be what we think this one is an interpretation well like problem with maybe it could be sometimes is that kind of contradicts your statutory interpretation argument because as i understand your argument it's either under two c and we don't have review authority or it's manual this falls under five five to eight you see and so the question i was getting out before is is this interpretive or a statement general policy of both of those are examples of rules that are not substantive roles and so  if there is something in the v a manual that amounts to a substantive rule of general flexibility that we would then have review authority over potentially although even then given the fact that the manual itself is not binding on the board we think that listening to these arguments and it does seem clear now and we're clear perhaps that the before that there is no longer a dispute whether or not what happened at record one hundred and what happened with sleep apnea perhaps even more egregious incidents and entire condition that v a now reads out we're now has changed the regulation not to allow anymore that this is a an administrative limit lose me and maybe you can focus on that well your honor the record is replete with e mails talking about a veteran's rheumatoid arthritis and it is apparent from a reading of the record that is before the court that in those e mail exchanges and in the actions in november two thousand and fifteen that a veterans rheumatoid are violence would have been service would have qualified as a medically unexplained chronical to a symptom followed a record of eight if you follow that training manual if you have a doctor come back and say we don't know how we got it we don't know how she got it in other words we don't know the ideology you wit release you get identified as a medically unexplained chronic multi millet's now because of this some sort of rule change it comes back we don't know where it is ok do we know how it's affecting the system the pathophysiology because you have to have before we don't know where it came from was good november two thousand and fifteen you have to come back and you have to show we don't know where it came from it we don't know how it's affecting yours i think this is challengeable through an individual action where someone has one of these conditions correct is challengeable and i understand that the government says well that it will last for our deference but the problem is that's the regulation that they're purporting to interpret merely parrots the statute so they've never actually done an interpretation of the i would urge the court to strike it down today because it does narrowly limit the administrative action for the million for the thousands and perhaps millions of practical veterans that are going to go to the result offices and ask for d long way down the road and it's going to be subject to a lot of decisions at the at the veterans court level today there is a mechanism for this provision to be for this to be struck