the united states court of appeals for the federal circuit is now open in this fashion god they the united states and the whole court three argued chases this morning first of these is number twenty twelve seventy one twenty flexion an abduction of the same shoulder veterans court held that under color and burden a veteran can obtain separate disability ratings that ruling failed to address the illustrations of played one and also conflicted with the controlling and esteban the ruling also did not correctly applying the governing regulations including thirty eight c f r four point four five and four point two five and for these reasons we submit that the ruling should be these other regulations specifically mention separate ratings for functions and docs and why does that suggest that this one was intended to have a different  result and not to treat those two well you're one of the regulations are structured differently and it's really not a uniform approach some of the regulations are very specifically tailored in the regulation itself but fifty  to one has broader language in the in a regulation but then refers back especially to play one which contains specific illustrations and you're really responding to my questions and some of these other regulations do contemplate separate waiting for other joint reflection in the document and this one doesn't have that language don't we draw some conclusion from that well i think those those regulations are written differently essentially they're written very specific very specific illustrations showing non overlapping motions of flexion and abduction which we submit are two separate disabilities fifty two fifteen is another regulation there was mention in the boon case where that was a regulation  but then when one looks to the plate we have the very specific illustrations showing these two non overlapping motions which under esteban we submit should be separately ratable disabilit so we submit that the v a is in agreement with the importance of using play once you understand the scope and meaning of fifty to one in addition there's the v a general counsel opinion ninety thousand and disabilities in the same plane in a way they found that those could be properly sign but again those of those going back to just six original question really severe counsel in which i have right here was based on two different diagnostic codes fifty two sixteen fifty to sixty one because again this was one of the sections in the regs that expressly differed as between flexion and extension and had therefore had two different code recognizing those is two different things i guess that the problem i see is logically you're making an excellent argument for somebody ought to go modify the regs and make them internally consistent maybe there are legitimate reasons to do that but that's not our role and the difficulty i'm having is there's only one code for movements and i guess i'm finding it difficult to conclude it may be able to explain to me more detail why it is precisely that you believe that plate one tells me i ought to assess to the leap and fifty to a one to two separate diagnostic code will play one shows two non overlapping motions and there's no question about that selection for example would be someone reaching up to open a kitchen cabinet for example abduction would be for example sideways but his usual one for whatever reason was written generally limitations of motion it doesn't seem to be particular to styles versus front that's true it has a broader language just like fifty two fifteen does fifty two fifteen offices limitations of motion after the wrist but the boom court found anyway to explain that that you can get a rating under fifty two zero one four he either election or abduction right so that's it's an appropriate place for that purpose but why this play wasn't there an earlier case to double the question whether you had to show a limitation in both abductions lending based on the plate yes yes your honor if you're a originally took the position that this regulation only covered i believe it was refresh my recollection my recollection is that it's not in practice that trend's case right that's on the court case i believe that the reasoning of that case is not crystal clear to me quite frankly having read it but it could certainly be argued to support your position of course we're not you know by that absolutely but are you representing that it somehow exists as a posture of the v a that we would have to give deference to just like with asking questions about deference to the association and its interpretation of its regulations do you believe that that veterans court case non presidential as it is is nonetheless an interpretation of a regulation that we have to give deference to appropriate for the four different non overlapping motions of the wrist based in part on fifty two fifteen which itself had two within that one disability so the reason i think is relevant another point i wanted to make  this sort of counting the codes issue is the amber mn case itself around amber men recall that the veteran there was speaking to disability ratings for post traumatic stress disorder and affected bipolar disorder but the records showed a complete overlap of the symptoms those two disorders and as a result this court affirmed the denial to separate disability ratings one thing that's interesting though is that those two disorders actually fell under two disability codes  ninety four eleven and ninety four thirty two the opinion itself refers to four point one three yo but you can see those two codes there so despite there being two to bill because the issue the court found a single disability based on the overlapping symptomatology rather than based on the number  and other regulation that's relevant is four point four five now four point four five it's specific to the joints and it provides that for disability of the joints the factors of disability reside in the reduction of their normal excursion and different planes flexion in abduction or movements in different planes and therefore we submit that limitations of these distinct movements should be considered separate disabilities consistent with four point four five aware of any interpretation of this particular diagnostic code that was outside of litigation certainly i said i think that the v a general counsel pending that discusses a different diagnostic code certainly supports our position  distinction if the limitations of movement of the arm without regard to whether it's election or abduction if it can be either the plate plate one that  young the lifetime certainly of us provide guidance to the rating specialist on how to measure limitations of movement and in fact four point seven one simply what it says is that it provides a standardized description and joint motion measurement it certainly does not indicate or alter that actual diagnostic criteria in any of the diagnostic simply a way to make sure the reading specialists are consistently measuring the limitations of motion and making sure that they look at both selection and of the action but there's certainly nothing in there that would require two separate readings under the same diagnostic code but there are other cases currently pending that you're aware of that are inching on either alone or for our core engine on the issue of whether a single diagnostic code can give rise to multiple disability rating i'm not aware of any cases here or i certainly think that that's a question that whether you can get two separate ratings for a single diagnostic ota something that's already been addressed by the veterans court and found that unless there's an explicit which doesn't if i remember right so we we there is nothing from our court that definitively says that as binding precedent but it's still being raised obviously and the veterans court despite its action seeking you know two ratings within a single diagnostic throw they said no but those are that we know which pieces of the system they look at you could have an entirely different system you could have this think it is worth pointing out that the issue of the wrist is weighted under separate diagnostic codes for the various movements in the different plans but please again that's a relevant distinguishing factor between that and the particular diagnostic code in that case and this case otherwise provided there to be reigned separately so esteban is an example of that for esteban had a single fatal injury that gave rise to three disabilities and they had to be rated separately to be a knows how to override that presumption of separate disability ratings for example and d c fifty two thirty five to fifty two forty six note six that provides that certain spine and disabilities presumption of separate ratings for separate disabilities under four point two five b if they don't do that with express language in a note or in the regulation the presumption of the regulation of their own regulations is that there have to be categories unless there is some explicit overruling of the of the present is that what you're saying to me i think you have to look at each regulation individual column for example was a different situation you know column was seeking to talking original because he said there are regulations out there that talk about selection duction and they so that we know that the secretary knows how to name both if they want to have separate warrants so when the way i understood the presiding judge was looking at  this particular regulation differently and they've used broader language in the regulation and then very specific language in the two separate diagram sort of company it and the v a is not disputing that fifty two zero one has to be interpreted in light of those two to illustration understand it that in the absence of something like plate one any single diagnostic code could give rise to multiple different bases of the year pre presumption and give rise to multiple different disabilities that would have to be separately compensated that's both separate movements and for that reason we submit they should be viewed as separate disabilities they should be separately rated the there was also a mention of the furnace vision will just say that the there's no analysis in the burn decision of man or place one or it or anything and in fact as a core acknowledged the issue of separate ratings was not even argued for briefed were decided by the board in that case we don't think the burden case is of any value to this court and