last year it has not there they've received comments on the notice of proposed rule making but they have not yet issued a final bill making the comment bruce indeed yes i believe the comment i i'm not sure that actually your honor but they have already regulation instead of simply incorporating the plain meaning of systemic and topical there provide specialized definitions and they're essentially now terms of art so yes in the neutral making they would be categor under some circumstances could be sustained we agree that there are that that it would be up to a fact finder at the v a in the mine of cases given the regulations contradistinction between systemic and topical and given the plain meaning of those terms typically they would not be and although mr johnson refers to scientific sources in his brief which we would know were not before the v a the board or the veterans court but to the extent that those sources show th at there may sometimes be the potential for systemic side effects and some peripheral applications of topical corticosteroids we was zero point out there's a difference between simply having the potential for unintended side effects versus as i am not a medical expert in this area i can't necessarily say whether that that is certainly the case that even the peripheral cases that could be true certainly are that's the standard and i understand what you're saying that's the standard that we have to re and for such a factual determination being made here no your honor the factual finding has already been made in this case the board found that mr johnson received topical therapy and not systemic therapy and even i don't know that they finding of fact where it says treatment of the veterans in disorder has not include it's and if there be and it goes on to recite the the senate there are the requirements for the thirty percent rating but because the board also made a finding of fact that the veteran had received systemic there and i think the point to follow up on george dykes question is that we can't be certain whether the board had the nuanced conception of what systemic therapy is through topical application that you're presenting on appeal well to two responses your honor the best way to read this record as a whole is that the board didn't make that finding and to the extent that mr johnson is now trying to introduce  argument that the board's finding of fact was clearly erroneous first of all that was never an issue before the veterans court and also it seems like mr johnson's only theory that topical therapy could ever be systemic would be based on side effects and at page eighteen point but but mr johnson has pointed to simply nothing in the record that would suggest that his application of the corticosteroid to approximately zero defiantly up to it depends on the medical examiner there's been one to three percent of his body in fact or up to five percent of his body affected there's nothing in the structure to suggest that that could have been the therapy that is affecting pertaining to his body as a whole and this again gets back to the concept of therapy vs side effects if a patien takes oral for example corticosteroid the effect is that it's absorbed by the body and its method of therapy of treatment is to suppress the entire body's immune system and thereby treat the affected area here we have a situation where m and you're asking us to reverse that and then distinguish between possible treatments which are designed only to be localized and pop up all treatments that are designed to be systemic there are right or so why don't we have to do we were to adopt a physician why don't we have to send it back or the veterans court to determine whether there is an issue here as to whether this topical  are because that was never at issue at the veterans court and it's really not an issue on appeal that the only issue that was raised in the veterans court was this theory that the reference upon a post airlines is categorical and unambiguous and automatically includes any and all type of corticosteroids so it was never an issue what did the board find it was understood at the veterans court that this that the better that the board had found this is topical therapy and not systemic therapy so it would be the most appropriate ruling of this court would be to simply set aside the veterans courts incorrect legal interpretation and to remand for it for the court to sustain the otherwise on challenge factual findings by the board that i have a copy i have is a section three four four j three f which is what you cited and that appears to be from twenty fifteen is that that the same text that was in existence all the way back to the time that this case began or was that added in the midst of this case that was added in twenty fifteen so that's brand new so it would that with the v a say that ok now that we have the education manual in place that we will apply the adjudication manual as opposed to whatever we might have thought through was before well that that might know that at its appears at appendix two fifty but it does know that when there is a question or are close passion as to whether something is topical or systemic it asks the adjudicator to send it to a medical a v a or other medical professional to bloodstream and circulate through the entire body that then that may very well be a question where the educator would have to send it to a medical professional but the position as i understand it in the proposed new regulation business i think you may please court addressing the issue of education manual the veterans court correctly noted that the modification cannot serve to retroactively modify the plain meaning of a regulation a retroactive it is something done after the fact well but that's typically the case when an agency comes in to explain a regulation that it previously thought was clear but has been challenged is ambiguous and the agency comes in and says well here's what we met and they probably ate some kind of document or regulation or otherwise that's true your honor and that happened in that case in this case is wow and here in doing that in the federal register in amending this regulation the v a said it was doing so because it noted that it was possible for topical treatments to have systemic effects so looking at the language of the regulation before it was amended as it exists for this case our position is that language is unambiguous it requires constant or near constant systemic therapy such as corticosteroid the use of the word corticosteroids there in the regulation in the every rating above zero not what the veterans or the side that will hear the veterans court properly interpreted the regulation and reversed the award and the board's interpretation and it did so exactly right and there's no limitation to the application of the corticosteroid indeed it would be improper to add a limitation to the regulation to to limit the application of corticosteroid to such as o as it's done in the different regulations so i tend to drill down a little bit here because i want to make sure that i understand your position and i understand your view of the veterans courts where i mean yeah the lower court's decision effects or is it your view that this code that anytime you do topical application of a quarter coaster you necessarily are engaged in systemic therapy if y there are other things that are mandated by the regulation the application has to be constant or near constant and that application is required so this is not a situation unilaterally decide to put  correct and that's based on the plain language of the regulation which even if it doesn't actually have a systemic effect as understood in commonly in medical literature that's correct and it's perfectly as though  veterans and reasons here it is a more objective standard to apply it's easier to apply the use of corticosteroids here are identified without limitation on application and that's distinguished from the diagnostic code sixty six  two if you would take a look at this zero percent rate in the current regulations it refers to no more than topical therapy required during that twelve month period would that in your view topical therapy with quote its corticosteroids assuming that the other requirements of the regulation are met yes we would exclude so so if you had topical if you went off and got cortisone there something and you put it occasionally in some place on your foot that would not be topical that would be systemic in your view the regulations for a non zero percent require some amount of  therapy and they also say that it is required right but what i'm trying to get at is whether you are saying that the word topical cannot apply to court you the use of corticosteroids assuming the other requirements of the regulation are ma systemic if in the case of the veteran here they are used constantly or in your constantly and that uses required and the answer is yes and if you look for example that would be true of everything down required and if you look at the zero percent rating in that the government argues that that would waive the zero percent rating and that's not true here if you look at the medical evidence miscreants mr johnson used other topical medications that you reference and the one that's available online was only issued in july of twenty six and what was the prior for well actually i have and the prior form is in the record i have december fourteenth on the my copy of that form it was revised in twenty fourteen but when you go to the prescribed and also identifies as other topical medications and lists the anti fungal medications which he was taking as well as the form here clearly distinguishes corticosteroids although topical from other topical medications now that the government also argues on the next page on eighty seven there is a reference and a question whether other systemic or topical medications have been provided the best reading of that form of topical medications refers to the topical medications that were specifically identified the kind of conical kind of comical and maicon is all in those topical with respect to diagnostic and sixty six zero two that diagnostic code was identified by the government during the briefing and identified a supplemental authority that would provide a definition of the word systemic and the veterans court considered that at the government's request and found that because diagnostic curd sixty six zero two identifies systemic and specifically the except to oral and parental role that supported that the only other place where it uses the term systemic and did not limit it here it did not limit the method of application the revised regulation is also persuasive the v a has now changed the regulation which it i he applied for the benefits guess mr johnson from the same in two thousand and seven so we're talking about the period between two thousand and seven and two thousand and ten presumably i have no reason to dispute the government statement with respect to hear you but the claim was made in two thousand had they not changed the regulation they would be entitled to propose changes they would be entitled to difference but since they've proposed a change in the regulation that all the deference that they otherwise would have been entitle to goes away well topical can only be topical and systemic must be systemic in the two are mutually exclusive which is the government's argument no it is not not in this case they are saying that that's not a clear line between the two can i'd like to quickly address the form eighty six to eighty seven the prior form that we that was on line does include ref and i got that's going back twenty fourteen does are omitted understood i wonder though yes i think that was my initial understand yes this was not the complete form as it was presented to the medical exam yes the medical examiner so and that's clear from looking at just eighty six the question is has the better end been treated with oral or topical and then the only options listed are the topical options which are checked and there are other non checked options for this it's demick version but you don't know if it was anything before twenty fourteen that included a reference to  sterile i'm not sure of the exact language of the other chart options but i'm sure there were other checked options that included oral or other i'm not sure if it actually said quarter coast systemic corticosteroids but there were certainly other options that were not checked here this is not evidence that topical steroids is being referred to as systemic the second point is that the reference to without limitation any term looked at in isolation could be said to be without limitation the limitation comes from the context of the regulation that comes from the operative requirement for systemic their feet the distinction with topical therapy and the overall structure of the regulation and because the veterans court disregarded that important context we asked that the court reversed the