honors and may please the court the veterans court held that a veteran entitled to one disability rating for a single disability within a single diagnostic code it aired in applying that holding to this case because mr cohen is entitle to consideration of two ratings for his two distinct disabilities let me ask just to be clear when we talk about the two rating what your client is seeking is under the diagnostic code he's already gotten twenty percent and he's seeking in addition or he's seeking a forty percent and when he's claiming that at the end of the day if he gets the forty percent he's already established he's eligible for the twenty percent he should get both of those is that yes that is what we're going to and the court doesn't necessarily need to reach out because that is what we're going to argue below with the board of veterans so what could we return here the theoretical question he hasn't nobody has found yet that he's entitled to the forty percent what you're asking us in terms of opining on a legal issue which i think i understand the sort of double dipping kind of thing that's why it is that right for review here given that we don't know if he's ever going to be eligible for the forty percent in any of it because regardless because of that muscle spasm the forty percent is certainly what we are going to the court of appeals for veterans claims however he's in receipt of a twenty percent as your honor rightly pointed out but even on  d on the court's remember court has foreclosed even if he is not in tight of the board finds that he is not title to the forty percent right he's still in total to the twenty percent based on limitation right he would also be entitled to a twenty percent based on muscle because those are written in the disjunctive and it's not pyramid he has a muscle spasm injury which is a disability of i'm sorry he has a shell fragment when disability case you've got two arguments invention which you've got either he should get the twenty plus the forty  did it was there was an in artful phrasing of william and will it moot our ability to ever address the issue isn't that really the point your the the federal this court i believe is not going to be able to address this issue in this case because the veterans court has already precluded it from ever even happening below it's never he's never going to be entitled to these two disability ratings because the court of appeals for veterans claims in this whole he's not going to be entitled the board may never say he's entitled can they tied our nobody's going to decide anything in terms of what you know you're not even don't know what you're going to argue because nobody's decided what categories you fall but somebody has decided the court of appeals for veterans claims has decided unless this court is reading the court of appeals which is claims decision to still leave open the possibility for two different ratings for two different disabilities let's assume we're not let's assume they've decided it why would we not be able to visit me visit that issue decide it you know do what we deal in terms of reviewing when they've done when the case comes back they're still alive case it's determining whether he's got a twenty percent whether he's got a forty percent why are we going to be able to a year from now or two it's question whether new preserved you're right on appeal to argument you can argue it to the board you can argue it to the court of claims i don't disagree and that the result on this legal question is probably keep preordain but then you get up here which is what we're talking about our ability to review or or it's going to in another another way right but i mean we will have the ability to years from now let's assume they give you the forty so you're going to be arguing with them well ok we get the forty plus you got to give us the tw and they'll say no one would eventually will say no no double dipping here and then you'll be up here and you'll be making this legal argument that yes double dipping is ok or they can make a factual determination which is court may live preview on if you read the court of appeals for veterans claims decisional going through it does appear i symptoms should be separated as they're not subject to parenting as opposed to disability which is what we're arguing today i suppose of the one thing that they can do but we're going to have to decide whether it's not over two years from now over what category this falls then too in terms of symptoms or disability and what the rule of law is and climbs back to right that's going to be the same question whether we do it today whether we do it if this court finds a bit that the question below is preserved what we did at forty versus twenty and then when the case comes back up we really would have decided a question that's irrelevant because if you only get twenty and you know when on your challenge to twenty nine you've just told us you're going to come in and raise duplicate two ratings under the twenty plus twenty nine on the twenty plus forty right so what we would have said on the twenty plus forty would be irrelevant it be an advisory opinion that never has and you actually all were arguing for your honor is for consideration of a twenty and a twenty or twenty and forty we're going at the board should considering right now they can't even consider this because the rule of law from the core of it and i've been imprecise in answering your honest questions the rule of law as enunciated so far by the court of appeals for veterans claims is going to prohibit us from raising right below that as we as a consideration because all we can argue to the board is that he should be can see at the board you can argue two things he should be considered to be entitled to two separate ratings and there are factual arguments that he needs the rule of law that they're to apply to not to there remain consideration i mean the remain process it is way sometimes harsh but it's not going to be a waste of time because they've got under still pretty raising the forty percent that the twenty percent was consideration  seeking ultimately just on this i mean putting aside his other disability if we are if we proved if we were to theoretically and i know the court can't get into this theoretically if we were to to if this court would find out what we're saying and overturn the court of appeals for veterans claims that he is not entitled to two disability ratings for two different disabilities if if the court were to find that then down below we would argue for a forty because of the and then theoretically we could we're never going to get the twenty ever the extra twenty for the spencers the spasms is what's going to be off the table we'll never get it because the court of appeals preventions clancy has said you can't even consider there's going to be no consideration of that right so the real but the real you're not going to get it on remand i know no way no what but the question is does the you going through the exercise a lot and then coming up here later to appeal both that determination on free man as percent clearly that's still on the board the question of law is the critical question is claims has cut off a legal avenue for increased compensation no not before it doesn't know the issue when it comes back right you're not saying you will be clued into making the nice i don't know that you can do that but it would be nice because i want to protect mr cohen's interest here and as it reads to me right now and i practice in this area and so back at the board of veterans appeals as a practical matter they're not even going to entertain it we're going to go and we're going to say tunnel to the forty for the reasons articulated in the room and we're going to go look to the bills of luke argument and all that and we're going to get him on it and hopefully hopefully we'll get him forty percent then we're going to say he should also be entitled to an extra twenty percent because he has a separate disability the muscle spasms and they're going to say some of the same diagnostic code court appeals reference points already called this one disability they've already said it's under one diagnostic code therefore do not pass go do not collect two hundred dollars we're not even going to consider it they're going to s addressed and so then it's going to come to the court of appeals inventions claims and they're going to say coalition seche you're out and they're going to give us a real fast maybe a memorandum decision probably is going to be two lines and then we can appeal at that point two years down the road for m claims you prevail to a certain extent before the court of veterans plans because you've got a real man and they said board you know saturn or go back and check this out maybe you will be entitled to forty percent and maybe you won't but that issue you're not going to drop that you a set you're not conceding ok forget the forty percent will just want to twenty plus twenty there right no better that has to be done that's not a waste of time by any means or a waste to process that process we're going to have to go through that process we don't have the authority to give you forty  what could possibly be mooted and you know barring a claim that that they had there with the ring to remain and any portion of your argument you really don't carry a case where at least to this court has regularly said it's appropriate to exercise jurisdiction we need if you could argue that we have jurisdiction in our case process that we should refrain from exercising it when there are still live controversy before the board your honor absolutely i want to to go through that process you want to go through that process that you haven't ever fail on your argument that you need to go through that process your honor i feel like i've been less than clear on remand the board of edges of pills absolutely must consider and increase reading from twenty to forty that's on the theory of limitation of motion as of right now the board of mentions appeals is prohibited from considering the twenty percent based on the muscle spasm so we're not looking for a forty percent rating if you've got a we are to some extent but if you got a forty and this court said that the court of appeals or benches claims was wrong and then we could get we he could be in for consideration to the twenty and he would have a forty and a twenty which would be a math is a fifty so it's a little bit different than just asking for a forty and i want to i want to be perfectly clear about that if the court decides that we did meet the jurisdictional requirements i don't want to run the risk that mr calling below can't even raise and this court won entertain the legal theory he's entitled to the forty plus the twenty or the twenty plus the twenty because a forty plus a twenty gets a fifty we're not just seeking below consideration of forty we're alternately seeking separation fifty nobody wants to be helped be held responsible for waiving an argument so are we all clear that when he goes back to the board does whatever it's going to do on this twenty unsupported percent question is it clear that the government thinks that he will have preserved the right to raise the legal question and the court got concerned it's just an address i think that that goes to what happens on if he acts appropriately on dreamland mary and he raises all the arguments that he wishes to raise before the korean even though we know it's probably probably pretty pro forma the as to what the board that and court is going to do but as long as the pope raises those issues if you properly raise or all of his arguments then those come and present them here to your honor's so you are saying that he is not the position of the veterans court with respect to the separate grading for the  case but not binding on the certainly on this court this coup or when it comes up properly on a review of a final judgment this court if the issue has been argued consistently by mr collins this court undertake to interpret the regulation and apply a review of a final change saying that we should game assuming the better it is still alive a few years from now we can then take up whether or not in fact it should final judgment assuming we agree with him to your science two years from now and we agree with him that he's got to go back to the horn again well he's going back to the board now right i mean we're told  the veterans court has ordered that there be a more specific statement from the medical examiner as to exactly what symptoms he exhibits and then all of or in other examination and then more specific findings from the medical examiner again as to his symptoms and has also directed the board to give a more specific statement of reasons as to what rating he should have so you have then a better statement as to the basis  d reasons for him having either a twenty percent or a forty percent well and i'm going to give you an example of what if the board goes down and says well he's he's not a forty percent and we find him twenty percent because of one set of symptoms and therefore given the court's ruling we don't have to consider the other set of symptoms because once you get a twenty you can't get another twenty you can't lump two together then and then there's a whole piece that the board will not do  remained and that we get it and would have to sort of back down will i really don't think that that will be the case the the board is going to after you have the more specific statement or findings of the medical evidence from the medical examiner the board will examine that and determine what symptoms he has and wari for those under the rating table whether it falls under a forty percent or a twenty percent then that goes to the court of improperly interpreted against him and at the then he would have a final if the cases decided against him he then could appeal to this court and present the issue of interpretation of the regulation and at that point it would be appropriate for this court to entertain his arguments but i don't and i appreciate all of that but i think judge amount is started by asking when that happens two years from now whichever way we can we live say yes you can do both or no you can't on what basis would we ever have to send it back and i think her concern the concern was this is going to have to go through another round once we decide the legal interpretation instruction regulatory interpretation which is within this court's jurisdiction which would have a direct effect on the ensuing proceedings in terms of s additional use of review by the border perhaps also the regional office isn't the appropriate thing to do to resolve this such a tory regulatory issue that is a larger issue because it affects the proceedings that continue well as your honor pointed out the the question isn't whether or not it's efficient there are three prongs to the williams test and we can see that the first two are met but the third is not clear there is not a substantial risk that the issue would be eliminated on remand rather what the in this case if you had if it was remanded and then proceeded to a final judgment and if the final judgment was against mr common then the issue could be properly raised to this court so therefore the any money or anything any final decision beyond twenty percent that he's already got until that me man occurs irrespective of whether we decide the snob or later right that's correct and that's why we would view this is if the court  review at this point it would be in advisory opinion with no real effect on his rights because there hasn't been any decision that he is entitled to a forty percent rating the veteran square specifically at page sixteen of its decision abstain from making that decision and remain ended that decision to the who are to be addressed i did want to just briefly mention that there is another case that we alerted the court to as being a related case a appeal brought by there is no remain and mr mcdonald already has a forty percent rating for his sorry ass expiring so we don't know of any reason why the court could not address the interpretation of the regulation in mr macdonald's resolve and so it is yes speedily in and i would hope your honor in less than two years if the court were to address the interpretation of the regulation we believe that that is  first of all the veterans court's decision is based on the factual priding that he has only one disability not two disabilities and i think all that very thing that's before this court and before the veterans court has proceeded on the basis that there is only one disability not to that's a different question isn't there the premise that we're being asked to resolve is if indeed they are separate disability both service couldn't get better but sufficiently separate which i agree with the question of fact but assuming that the separation is decided is a separate rating nonetheless precluded record shows here is the medical evidence shows only one disability in my views on the facts if he's going to try to frame it as to disability he may very well lose on that that man the whole case has been litigated as every stage as the medical evidence showing only one disability that disability of falls within a specific assumption or the probability or even possibility that sufficient separateness is established nonetheless is this separating preclude will that would be a  change in the way the case has been litigated jonna because prior to this argument today it's been litigated on the basis of only one disability and then the question is how do you define disability yes  their there is a specific regulation from the veterans administration thirty eight c a four four point forty which deals with the definition of disability and says that it's basically inability to perform the normal working movements of the body with normal excursions strength speed coordination and duress and that's how disability has been defined and it was that regulation itself was addressed by this court in the read case but i just wanted to point out that this is a change in the way the case it's been litigated and i think also a misinterpretation of the veterans courts very holding in this case still holding is for the circumstance where there is only one disability rated under one diagnostic code you get only one rating that's what they held and  two distinct and different disabilities those are those are what and what we're asking for is a rule of law stipulating that when there's written that when a diagnostic code is written in the disjunctive each disability is court of appeals for vengeance claims is going to send it back to the board the problem is going to be that mr cohen is going to be able to under the court of appeals or veterans claims he can now raise whether or not he's entitled to the forty percent the limitation of motion he cannot ra appeals regressions claims is going to get mad at us because they're going to say we have an answer to this question of law and at that point yes we can come back up to the federal circuit and ask for consideration of that again but there's no guaranteed to mr cohen that they're going to have that this court will have jurisdiction at that point because he has been prohibited from raising that theory below so given not withstanding what the government has represented here and all of our question government if i understand the government's concession correctly no matter what happens today the no matter what happens or today this is going to go back for eight for consideration of our theory of separate disability being rated separately and then combined on a four point two five if that is the case then that is all we can really hope for that the board of appeals prevention that the board of actions appeals will be able to at least entertain our legal theory absolutely no the question is what we will be able to entertain whether it will be mooted here the question will be moved before us ultimately and the answer based on the representations is you know it will not be right and if you take issue with that i do know