gentleman we had or argued cases before the court this morning the first is a veterans case the other three are patent cases from different or in we think we fit well in the williams exceptions first we know this is a purely legal question and we know he had a partially replacement it isn't a situation where we need to find out what type of surgery he had so that's everything's before the court  point seven one diagnostic code five zero five five so it's found in a different source now in terms of how they internally code internally coded as five zero five five dash and there's a for a four digit letter that stands for the regarded as similar but so under that application under that an analogous consideration he could possibly get an award that would be the same that he would be entitled to if he were allowed to proceed under the regulation that you wanted to surrender yes ma'am yes your honor but i think we have to look at the analogous rating the beauty let me back up the beauty about five zero five five is a veteran comes in and can prove that saying that the location is the same in the symptoms and are the same so by remaining at they are robbing him of his automatic rating is automatic then the result could be the same in the end result could be the same except that he has to go through this actual extra looked at me or a and even when whenever i go back and look at this what i saw over and over was sort of this language of the veteran may win or lose on the facts of his case without regards to the challenge regulations here there's no way he can get a rating their prophet interpretation i would argue it has actually been consistently applied with regards to our interpretation five zero five five does apply to partially replacement and those decisions are from ninety eight through two thousand and fourteen actually during the pendency of this case their highest victoria body was saying five zero five past are from the replacements and they're not made by one or two rows or members there are fourteen different board members made their seventeen decisions so i would argue this is a lively and widely held view by the board and so it's not consistently applied and so you should not give them the same about the fact that now they've undertaken rulemaking to actually make it clear that that it doesn't cover partially the ice i would argue that that actually is an admission by power has said it doesn't make any sense right now that's exactly right and especially within the still the law it is still the law in the orchestra and by that i'm constrained by that but in this situation where you also have the supreme court that's total prosthetic implants it doesn't say total or complete prosthetic implants it just says prosthetic implant and we know mr hudgins had a prosthetic implant place there so i have a difficult time also getting looking back at considered five zero five at the v a came back and said we did consider five zero five i would have expected them to then say but you know it doesn't apply to your partially replacement anyway they didn't make that argument in two thousand and twelve and taylor it's very puzzling if you look at their last paragraph conclusion but we'll do that in a minute if there is a question on remain out whether this issue will survive if then we can lear that a partial replace me doesn't apply under fifty fifty fokker that's correct and so he would have to do it by and then what you and your position is he's entitled to do it  that puzzles me a little bit for this reason i would have thought an analogy to fifty fifty five which deals with hip replacements would be an elbow replacement that is let's assume for the moment that there is no provision the placement presumably in my hypothetical and you could by analogy say well let's look at hip replacements but hip replacements partial or total are not unlisted depending upon how you construe fifty fifty five so i don't see how you could have an analogy to a prohibited from your viewpoint i don't see how you could rant and then  we remedy for something that your position is is prohibited by the code your position is fifty fifty five prohibits a partial replacement recovery under fifty fifty  i'm not sure that they're quite the same our position is that a partial knee replacement is not covered under the direct language of fifty fifty five which applies to prosthetic replacement of the knee joint then the sand may be where the distinction lies just later is that  ding by analogy talks about an unlisted condition and i'm not sure if a knee replacement is of the condition and it is a remedy for the condition which is you know the generation of the need of some extent  but for twenty says an unlisted condition so i'm puzzled i might if i were sitting on the board in the same before me and said well it's analogous to fifty fifty five i would scratch my head and isn't that ultimately the myrrh the question we have to decide up if this current rate of find that it should review the merits yes i do think that i think the position that the agency has taken is that the analogous rating provision covers not only i guess unless the conditions in the set in the sense of your hypothetical if it's a joint that's not listed in the diagnostic code schedule but also distinction and you are hypothetical that the condition here was covered to the extent that if it was severe enough to require a total knee replacement would be covered under diagnostic fifty fifty five however i guess the less severe condition that only requires a partially replacement in that sense would be unlisted because it doesn't qualify under fifty fifty five so i think in that case the the board would turn to florida twenty and look at it by analogy say well we have a severe need condition that calls for a total knee replacement and that's covered but that's not what we have here here we have an unlisted condition it's a mild there are a form of  third believes after it's not satisfied but again these cases are all very fact specific are they not in each instance you're supposed to look at the precise circumstances i mean this isn't  we your honor i would say that because the court's receptionist's only limited to looking at the legal questions that the fact that there are different factual circumstances is irrelevant it's irrelevant to how you apply williams well i think that the the individual facts in a specific case would not be here on review because of the scores limited research so you'd have to look at these would be specific legal questions of the court would be examining so the fact that in  it was you know a small it was a intestinal surgery that happened in here it's a near bus and i don't think that is quite that distinction is relevant i think the the relevant issue is whether the legal issues your argument was a very interesting one you said well if it's not as severe as a total replacement you can only get when you only need a partial placement you're not going to have this an condition if he has a different condition scene you may have a different condition in the sense that it does not fit within the requirement for a total knee replacement but if you look at the diagnostic code actually provides several rating levels depending on the severity of the pain and the weakness in the extremity and so while he may not qualify for some of the more severe ones he may qualify for some of the less severe ones i think that's a factual determination that the board is going to have to make in the first instance which is why this case was remanded by the veterans court and i think that if we follow that analysis as you post that we at least have a question as to whether he'll get the same learn that it will well and i believe if you does not if he feels that he's entitled to a greater remedy under fifty fifty five than he received under the rating by analogy he would still be able to appeal that issue after reno and after going through  into court when he has a final ruling so there's no need to so address this under the williams exception because there's no substantial risk that the decision would not survive or remain it's only in that context where the really gives him any shorter across it maybe a little bit more defiant to say he that's another that this diagnostic programmer then having to meet the elements of rating by analogy well there are a lot more merits assessments that need and whenever things go to the v a they're supposed to handle them expeditiously but in reality it's actually quicker to come to this court to get a decision and you get around on what i think we're going around donnelly because it talks about the violation of a right wares five zero five five is unusual it involves actual surgery and so there is an odd disconnect where four point two zero talks about the condition where we are really an