me excuses number seventeen fourteen sixty six cylinders against the secretary of veterans affairs this must thank you your honor ma'am please the court the secretary agreement with on the central legal question that decides this case namely that disability in section eleven and refresh the functional impairment and not to a specific diagnosis condition and the pain in the absence of a presently diagnosed condition can cause functional in terms of you can see this most clearly i think it aged twenty one of the secretary's brief where he states we generally agree that the term disability refers to a condition that impairs normal functioning and reduces earning capacity and we recognize that pain can cause such impairment in certain situations so what's the difference between that so the difference between the two of us i don't think there is a relevant two arguments for why this court should not reach that legal question i am happy to address both of them i think that it's particularly important for the court to address this legal question because it's one that's been sitting on resolve for about this case on something other than this flawed legal rule there is no support for that argument in the records and look at the veterans court's decision at appendix to the veterans court recites that the board found that pain alone is not a argument about the flaws in the cinches been its principle seen from the cases that the veterans court cited that that's what it's doing it relied on the found case i think the kennedy cases particularly instruct in kennedy the veterans court noted that there was functional loss due to the veterans me pain but no current diagnosis and so denied service connection on that basis there is another condition issue in that case i  and with respect to that condition the veterans court remanded for a consideration of the effects of that condition on the veterans employment the only difference was that that condition had a name and the need to mission did not so we think it's absolutely clear that the veterans court resolve this case solely on this flawed legal principle that the parties both agree is wrong it's equally clear that the board result on that basis the board at appendix twenty two again recites the legal principle on the one hand you seem to say that that issue has been resolved in your favor it doesn't seems to say that that issue has been resolved against you my view of the record so we think it has been addressed but we research in lee i don't believe that has been addressed in the secretary's favor we have here the in service diagnosis of patel a final syndrome which is what meets the second we have the board at appendix twenty two reciting that finding by the examiner and not rejecting it and appendix one thousand aboard recognizes that if it's going to reject a finding favorable to the veteran it has to provide a reason for doing so and it doesn't do that  that in service diagnosis and again the board does not reject that finding there is no discussion of that in the board's opinion so we do believe it's clear that those two pieces are meant likewise the functional impairment that the examiner found the board did not disru that and then on to the board really even need to address those questions when it was specifically finding that pain is not a disability it may not have been if this court believes that there's insufficient findings in the record to outright reverse them in the proper remedy would be a rematch and a clarification of what the correct legal rule is and then remember the to the veterans court to remain to the board to apply that test but we do  is important for this court to correct the legal error to make clear that disability under section eleven ten means functional impairment functional parent is defined and you no way we agree within the secretary's regulation  a current diagnosis of a disease or injury you need in service disease or injury and then you need evidence of a current disability that is linked to that in service agn superadded good morning may it please the court i was the government pretty much confessing error here no your honor in fact i wanted to address that point right off the bat because i was in council is not correct we have not conceded that the veterans courts principle from sanchez benita as the pain alone is not a disability is incorrect what we conceded in our brief was the simple point that it is conceivable that there could be a veteran who has subjective pain and who has evidence that has been documented that the subjective pain actually is impairing the veteran so that there is an impairment and if that's the case and that that and th function can be a disability yes your honor as misandrous acknowledges in her own brief footnote three if a veteran experiences pain without any functional impairment there would be no disability cite appendix eight hundred twenty two to twenty three i looked at those references i do not see any such fine if you show me where it is iran of that fact finding by the board on those pages that we were referring to specifically on pages twenty one to twenty two hundred twenty three is that there was no pathology to warrant a diagnosis of the x ray studies queer feel normal findings except for the subjective pain and that there's no pages twenty two point one three is the board saying that the pain doesn't appear functionally iran or it's correct nowhere on those pages that were used that specific language but if you look at all of the factual findings that the board made those are based on the medical records in which there was no objective evidence noted of any impairment and it's not our job to review the facts they've got and they've got to meet factual findings they have made well your honor they have by pointing to those facts none of which support any impairment there is no finding by the board that she actually had any impairment and that is the finding that was not funny one way or the other that's why we would seem that we have to  pain alone is not tied to some current disability but you now you gals can see that that pain can be functionally disabling their crime so that that twenty year authority is probably wrong right no your honor we can see that there could be a case where subjective pain that is objective lee the pain that is subjectively documented through findings even if there isn't a label attached to it as a diagnosis if there's objective findings in the medical records that substantiate that the pain actually exists and is having an impairment that has a specific from what judge only just yes you i'm not understanding your honor it would if it differs from the fact that in this case you do you do not have any objective findings of any disability as despising about the legal principle the legal pretty you agree that the legal principle on which the pain could be a disability then that means the legal principle that says it never can be is wrong right will you want to what the sanchez benito's principle says is that pain alone is not a disability pain alone meaning there is no objective finding document doing the actual effect of what is chance that it could have all kinds of documented findings and they would still say under that legal theory that it's not a disability of course you have to have evidence of the yes right but it's important to understand the context of the disability prong of the compensation test under section eleven ten which is what we've been talking about the first prong which requires not just evidence of an impairment but as this court held and that they this case cited in their brief looking to common death dictionary definitions for disability an inability to pursue an occupation due to physical or mental impairment so there has to be not just an an impairment of your earnings capacity but it has to be tied to some current condition it isn't simply an impairment of earnings divorced from any actual diagnosis and it's important to understand why that is and the fact that that is what section eleven ten requires if the situation situation were otherwise there would have been no reason for congress to enact the accompanying section eleven seventeen which provides for disability compensation for a small subset of veterans those who served in the persian gulf arena during the persian gulf war and in an acting section seventeen's dealing with a different question which is the  trey's to a disease and injury or injury that occurred service as a disability your honor when congress and acted sectional eleven seventeen that statute specifically provides for compensation for the veterans in the persian gulf who have undiagnosed disabilities or medically unexplained illnesses and when and when congress an act of that statute it recognized in sections one zero two one one three of the statute that enact that that changed was required to provide compensation for veterans experiencing quote disability resulting from illnesses that cannot now be diagnosed or defined because those disabilities were quote not considered to be service connected post states or service and that there was a report of it of the knee pain for a brief period of time in one thousand nine hundred one in service right but the board never made a causation because it's sad i don't care how much service and so the board did as a matter of fact address that issue and if i may just return to section eleven seventeen our position is that if section if section eleven ten by itself provided for compensation already for veterans who have an undiagnosed illness or an unexplainable condition such as pain alone there would have been no need for congress to enact sectional in seventeen because it would have and examined in a number of different ways and the medical examiner's report in this case for august two thousand and eleven specifically noted that in her miss honors is needs were tested repeatedly not just once or twice but three times and th five those those repeated testings of her knees there was no there was no observation of any pain that was displayed again of the x rays and all the have a logical testing was all negative but even through moving the knees about multiple times there was no demonstrated pain and so subjective pain could be quantified through that type of testing it was not in fact in this case and that's that's all that there is in the record there's nothing in the record without evidence of impairment and that isn't tied to some current condition as the definition of disability requires that that is not a disability but what we're saying is even if the court were to get to that legal issue there are the board's fact finding here contains nothing that would allow a misunderstood to establish that she actually had a disability because there's nothing in the board's fact finding that indicates that there was any actual impairment caused by the subject of pain and so under the court's this court's jurisdictional statutes of course this court cannot step in and review those facts findings and to the extent that maintains that the board's fact finding is somehow incomplete or cherry picking facts the time to raise those arguments of course was before the veterans court itself and she did not do so and so the fact finding by the board is what it is and that is the record that is now before this court which contains nothing of any evidence of actual impairment caused by her subjective pain but i think in this case there was a reference in the opinion that th hundred or so times the veterans court itself has subsequently applied the sanchez been even as principal in other cases and no doubt there are many other decisions from the board that never got to the veterans court where the same principles appl but this court is if all that was presented in this case was a pure legal issue of whether a veteran for whom the board had actually made fact finding that there was impairment caused by the subjective pain but the board in the veterans court nevertheless mistake in their decision to articulate it legal principle which they found dispositive was well we're not supposed to reverse them well your honor as in sanchez benita as itself which came before this court after the veterans court in that case as in this case the veterans court and the board below had made underlying factual determination which this court cannot review and so regardless of of the resolution of the legal issue the fact finding remains board is that the subjective reports of pain that was all she was diagnosed with were subject to pain and that nothing substantiated the actual impact of that was and i think that was the legal conclusion i understand that your center of that ties into the legal question of pain alone if you will but my point is that all of the fact all of the medical evidence from the medical examination that was relied upon by the board was to the effect that there was no impact on this saunders ability to function beyond herself reported complaints i see them over my time  the first talk about what sanchez benito's actually says because the government is not describing it correctly i think the court appreciates that but i think it is helpful to look at the language and again you can find this for example at appendix three in the veterans court decision appendix twenty to you in the board's decision both are a direct quote of sanchez and you know what they say is that pain alone without it diagnosed or identifiable underlying disability does not in and of itself constitute a disability for which service can actually be granted that doesn't talk about pain without functional impairment it doesn't talk about anything that the government's describing the role that the veterans or has been applying in this case in more than a hundred other cases  own count is that current pain without a current diagnosed condition can never be a disability and the government certainly is not defending that lethal role before this court and also like to address  with it is a little unclear that certainly at the quote in their brief that page twenty one and page twenty six is consistent with our view of the law which is that disability means optional impairment and that pain can be functionally impairing even without a current diagnosis we certainly think that's the correct legal for all the reasons discussed in our brief and so we do agree that the time has come for this court to correct that legal rule and i also like to address some of the characterizations that the government made about the record in this  reason to appeal a factual finding to the veterans group we have no ability to do so the veterans court can review only the factual findings that are adverse to the claimant there was no such finding your government has pointed to seventeen that's not something that the government cited in its brief and these are its title findings of fact what is effectively a boilerplate statement that it just says that the test for service connection isn't met to look at what the basis for the board's ruling was you have to look at the reasons and bases portion of the decision and that is that appendix twenty two to twenty three and the government notes that the the board there recites the fact that a medical testing was normal for specifically a range of motion testing and x rays and it's doing so in the context of discussing the fact that there was no present diagnosis what the board never looked at was the evidence of functional impairment that the examiner found and that throughout the medical examiner's opinion at appendix five nineteen the medical examiner finds that mrs honors has pain she has pain with running squatting bending and climbing at a clear cites functional limitations on her ability to stand and walk namely that her knee pain prevents her from standing for more than a few minutes at a time and prevents her from walking more than a quarter of a mile at a time examiner also at appendix five twenty two notes that it has significant effects on her usual occupation in the form of increased absenteeism as well as adverse affects on her daily activities by preventing her from engaging in sports and exercise that is all evidence of functional impairment the board simply ignore that evidence again the board if it wanted to reject that evidence and find that that was not functional impairment not a disability it had to provide a reason for doing so it didn't and it didn't because it was applying this pure legal rule that pain in the board did not disturb that finding the court has no further questions to reverse certainly man thank you thank you thank you