so i understand you also want to reserve only three minutes for rebuttal that's correct charge ok may proceed thank you may please the court the issue presented here is the proper interpretation of thirty eight c f r three point percent as those existed in one thousand eighty four as the court is aware of the v a used three point six five five the continuous rule to discontinue mr morrison's compensation in one hundred eighty one with nine days notice after he missed an examination and it did so without making a separate determination as to whether he had adequate cause for missing the exam and it did so without applying the protections of the reduction rule three in three point three four three that applied to and applied to reductions in awards for veterans rated at one hundred percent as he was at that time and with respect to your first issue don't we have a problem in that reasonable excuse for his failure to appear i think it's as if as i understand a question judge you're asking whether the fact that so that it may be that he may not have had adequate cause missing the exam after all and so what's the what's the harm in the misinterpretation and the fact is that that's irrelevant because the error was that they terminated his benefits without making the prior threshold assessment about adequate caught that all happened in one thousand needy one and through up through the one thousand and four board decision and that failure corrupted that entire process and so the fact that that now somebody wants to look back and say well he didn't have adequate cause that's nothing that's that's up to the theatre how could they have made any determination as adequate when you know that far as they knew he was just wasn't responding to any of any of the mailings they had heard from him i mean you agreed that by the time they actually got a letter from him the determination he made said to cut out the senate yes the determination been made with nine days advance notice over christmas and new years so yes that determination has been made but by january he had submitted a statement to them explaining that he had not gotten the notice that he was writing that he was more than willing to report  and but by that time the v a had already put him on the track that said we don't we're not looking at idaho cause we're we're and they never looked at a cause they just said you missed the exam we cut you off so therefore we're only following this rule and we're not going to apply any of the protections that three point three four three afford you even though you're rated at one hundred percent and we're not going to bother with that without a cause i want to make sure i have the sequence of events here right because there's some confusion at least in my mind you mentioned that he made a statement in january we started with an appendix sixty five the statement that he makes saying that he got the notice to report for examination on july thirty first and didn't receive it until august nineteenth you know the tough talk i do and that document is dated august twenty fourth now does he later make another statement personal another document to the a with respect to the term a nation of his payments objecting to the germination of these payments after december no he does not charge so that was i'm sorry well that but my question is where is the notice of disagreement right because there are there were a couple of different issues that were going on one was the discontinuance in december and then in make but before you go any further and i don't i don't want to break your chain thought here but just you had mentioned that he did something in january right what did he do in january and bought this just document here w dated august right but that the the lower court and perhaps the board but certainly the lower court decided that that was not submitted that that was that even though it was dated in august well now i know i'm getting confused on the facts but they held that it wasn't an adequate appeal of the discontinuance wound he was referring to the july correct communication not the december didn't appeal the sixty five terminations then that's that's fine right not entirely judge because what he did appeal and what the board found he appeal were two things two other things besides the discontinuance from the december discontinuance he appealed the reading reduction that when the v a in april said we're we're knocking you from one hundred percent to zero and ultimately up back up to ten but when they saw them in a poll cutting or reducing your benefits he appealed that the board agreed that he perfected an appeal on that and made that a factual finding and he appealed the i set the x the accuracy of the ten percent rating arguing that he was entitled to a higher rating so he was appealing if from both angles both it should not have been reduced and it should be higher let me go back to judge break point and i understand the read for read brief argues that he wrote this letter in august but they didn't get it for five months that they actually received it in january and then treated that as a request to reopen and i don't really dispute that i don't but i but i don't think that has anything to do onto it didn't submit it until january i i believe i don't i don't remember a from him but i believe there's a vs there may be a v s o stamp on it may have turned it in to a veteran service organization but there are a number of different dates on the back and i think it's a sixty six showing that you know different people handled it but they're all dated in january and february and it's there is no explanation for why whether he actually tried to submit it in july or august or whether he dated it and was using a pre dated form and then turned it in but that as i say none of that affects whether the board or the fact that he did not appeal that december discontinuance per se does not affect the fact that the board was on a less than eighty four required to review the case under the reduction rule because he did perfect the appeal of the reduction decision that the court was reviewing made a finding of fact that the veteran had perfected an appeal asked for the reduction and then two thousand and nine boards said he perfected that appeal but the board in eighty four didn't have to address that issue because the rule did not apply there are two different issues aren't there really there's one in the sixty five issue which is whether he should have been terminated because he didn't show up for a medical examination and your argument there is they didn't make an adequate finding of no adequate cause the separate issue it seems to me is the three forty three issue which is was he properly reduced which given his condition they were entitled to examine him and determine that the board agreed that the veteran perfected an appeal of the reduction and the and that therefore he was they were required to look at that and what happened then at the veterans port is the veterans court addition the court regardless of whether i raised it explicitly and as i said i think i did but regardless of whether i did the court let stand the board or the dissent the judgment of the lower court let stand a lower  are the let stand the board's misinterpretation of the law it's very clear that three point four three does and should apply in conjunction with three point six five five that's three point three four three governs the standard veterans for reducing a reading for a better rated at her percent and three point six five five governs the timing and the circumstances under which they can reduce it they can apply both they don't have to choose and they shouldn't choose between the two given the purpose of three point three four three but the logical result is if the if they can't reduce from a hundred percent without making the medical claims but they can get someone to show up for the medical exam that's required that someone could just forever not show up and then thereby present prevent a reduction from ever i don't think that's an act i don't think that's correct judge i mean i understand the concern but but they have rules in terms of abandonment of claims they can propose i mean they can go through the due process procedures of saying we're not going to just precipitously discontinue your benefits but we are now processing of this fine so they there are protections that would allow them to do that and the point here is simply that they could not use that three point six five five which at that time allowed the v a to cut this person off find these notice and from a one hundred percent has zero from december twenty second to january first without giving him the protections that the three point three four three the veteran had said i'm not showing up for the medical examination don't bother me so it clearly no adequate cause for is not showing up so no six fifty five argument  when they reduce him to zero under six fifty five then he comes back and he says oh no no please don't reduce my payments and so they say we'll treat this is a reopening and they then do the reopening and they come up with ten percent have they violated three forty three in your view by doing that proceeding in that manner i'm not sure that they have died because there are again there's other rules that i don't have the citations because it wasn't part of the briefing but i mean you know the words were i'm going with this a course is he was you say you keep saying with respect to three forty three they can't reduce him from one hundred percent but as of april he was not that hundred percent he was a genius there have been reduced under sixty which takes you back to sixty foot right but the problem is that they used the wrong when they reduced him in april when they reduced the rating in april they didn't they used the wrong group and they didn't they do now but i think the government will say they didn't reduce him in april they gave him a new rating because he'd already been terminated under sixty five percent from our perspective then the v a is allowed to say that the veteran suffers the consequences of their using the wrong rule or using the wrong application the rule if three point six five  is to be read it even if you read it in just in conjunction with three point three four three then or is three point three four three is to be used instead of three point six five five the v cannot rely on using the wrong rule to say well we use the wrong rule but here he is now he's now we've already discontinued just benefits and so now because we discontinued his benefits he falls under the discontinuation  applies to the reduction in a rating and three point three four three to me says that he cannot we do see a veteran's rating without a medical evaluation and finding that there's a material improvement and i see that it's different from six by five which speaks to a discontinuous skill like a suspension of your of your payments but you haven't reduced the rating and those two those two looking at the regulations that way they seem to me to be pretty consistent so what happened here in this case is that the that the payments were discontinued his rating was not reduced the payments were discontinued and they were  his his rating was reduced only after he had a medical examination later on into the into the late two thousand but at but actually jaggs the rating was reduced by virtue of its connection to the discontinuance had had there not been a discontinuance then they they absolutely had to there's no question that they had to follow just a pure three point three four three reduced the rating pursuant to without using three point three four three and well with that when it when you're when you're talking about adequate caution under six by five the to state any reason would not be you know at a foot cost it may be judged but they never made that determination they never made the assessment of whether he had adequate cause or not you can or something in some reasonable period of time if you if you want to submit any evidence on that and by the middle of january he just sent them a letter saying i didn't get the notice and they did not make an assessment then about whether he got notice or not and if i could just go back for a minute to your forehead but before even before you do that now he had a medical examination in march of eighty two and it was after that that his rating was reduced correct but they reduced the rating based only on the exam they didn't consider the other evidence in the record they didn't look to see whether there was a material improvement so the use of a stricter burden and they put the burden on him and then when he appealed that they put the burden on him to show that he should get a higher rating instead of having the burden be on the v a to show that there was a material improvement so he received none of the protections of three point three four three simply because the a misapplied the rule they should have used three point three four three in addition to or instead of three point six five thought and no one knowing no part of the a and the lower court have have ever   i don't see that the protections you refer to always go existed back in eighty one eighty four oh the well the the the protections i'm talking about are in three point three four three in terms of the standard and the burden and that rule as far as i know has not changed so but if i could pick one minute to answer terry gross in your way over time sara will restore two minutes of your rebuttal and we'll give the government an extra four minutes as a result the board in one nine hundred eighty four could not have erred much less clearly an unmistakeable the error by failing to review that decision to discontinue benefit with board make a finding to that effect  hundred eighty four that the discontinuance in december of one thousand anyone had anything to do with the issues before the board when did the issue of the sixty five first arise this case my understanding is that on so there was a queue motions made by mr morrison before the board beginning in i believe two thousand and five that dealt with evidentiary issues after that was resolved by the board in two thousand and seven the case was appealed to the veterans court and mr morrison and to be asked to remain and to deal with the question of whether through section three point three four three had a should have been applied by the board in one thousand nine hundred four henri man the board said the board said that no section three point three four three should not have been applied because mr morrison and if it had already been discontinued at that point which meant that section three point six five five provided the standard for decisions that the board had to use in one thousand nine hundred four and that the board had correctly applied that standard that decision by the board which then appealed the end to the veterans court at which point the v a and mr morrison again asked for a rematch and to the board to address the question of whether the discontinuance in december of between whether you can just cut off the payments in their entirety and whether you can change the rating why wouldn't three four three come back into play when there was an assessment of what was his benefit should be i mean yes they were cut off entirely yes maybe he can claim that he was entitled to anything between december and march or december and april but at that point why wasn't one hundred percent the sort of for failure to appear for an examination and that rules specify one of two regulations should be applied either section three point one five eight which applies to abandon claims and there's no argument that mr morse and claim was abandoned or section three point six five five which applies to the resumption of ratings after the failure to appear so and so the regulations themselves indicate that sections three point six five five is the one you apply in that circumstance there's no reference to section three point three four three second the v a has interpreted section three point three four three to apply only to ratings that are continuing in the fact at the time  interpretation of section three point three four three is that the rule applies when payments are being made based upon a rating so if payments have been just payments based upon the total rate have been suspended the rule doesn't apply and that aligns with the policy of the rule which is that if the payments are ongoing and the veteran has the pendants on them there shouldn't be a sudden stop and without a medical examination first  in this case the payment had already been properly or you know obviously that's up for debate but had been discontinued in a final decision a decision that is now final by the v a and so the rating was not serving a basis for any continuing team and veteran in that case section three point three six five five pardon me applies and it's worth noting that the the the purpose for section three point three four three as explained in arriving stein what you responded to a series of legislative technical amendments to the the statutes governing governing veterans benefits that had the protect against that probation of a total rating based upon not any medical evidence but rather a legit legislative change that was not intended to have a substantive effect on ratings sections three point six five right i mean the board i mean you look at the nine hundred ninety seven record and exams and everyone seems to agree that he had an ongoing problems with nine hundred seventy nine forward and that the decision in the eight hundred seventy nine  hundred percent decision and then to ninety seven of one hundred percent time i completely together and so that that for fifteen years he was denied benefits because of procedural hoops that he didn't jump through properly but medically he had the same problem during that entire period and they're right actually you're on of those situations consider really more complicated than that and the problem and this would be a heavily factual actually dependent section in part or of thirty eight c f r contemplate and the symptoms that he displayed what what the board explained in one thousand nine hundred four and what was repeatedly explained even after that and examination and the reason for that is that appears to be that the diagnostic schedule sense now as it did in in the early eighty's that for symptomology subjective simpson the symptom it cannot be observed or demonstrated through a diagnostic test in a clinical setting something not symptomology and associated with a brain disease can only got a rating of ten percent disabling unless it's associated with a specific diagnosis of non psychotic organic brain syndrome and the problem for mr morris and with that the doctors repeatedly found that his braying didn't show any signs of an findings that mr morris and condition well it couldn't be given really a specific name that fit within the diagnostic schedule with something analogous to epilepsy major seizure disorder and that was  examination conducted upon his discharge from the marines and interestingly that appears to have been based entirely upon symptomology rather than any finding the problem was that the examiners couldn't correlate that with incidents with any continuing evidence of actual physical changes in the brain which is what an organic and organic brain require there may have a disagreement and medical opinion is not a basis for q let me get your response if i could to a point made by scott the medical examinations that were conducted in sixty five procedure in which he was asked to come in and he did come in and he had that kind of medical examination would he have been subjected to a different and more lenient standard if then that he was when he was trying to prove in effect in the first instance that he had compensable disability there's substantively as a matter of fact there's no reason to believe that the analysis with different and mr morrison points out that the language of section three point three four three differs from that section three point six five five but as a factual matter and mr morris and chase his his his condition was evaluated not simply on the basis of terms to examinations the v a also reviewed his records from his hospital  hospital treatments in the past continuing years and his service what was available of his service record as well as employment record that and they found that i mean given that the rating went from one hundred percent to zero percent it's not a fairly necessarily the case that that's a really determined either that the initial diagnosis had not been supported or that mr morrison's condition must have changed materially which is all that section three point three four three requires section three point three four three says you can reduce the rating even as if it's a one hundred percent rating so long as you either find that the initial rating was clear error or that there has been material improvement in the condition of the veterans what you seem to be saying is that this in all likelihood would have if analyzed and the three forty three would have folded under the first of those rather than the second that he might have been just as bad a shape but they made it clear error in the way they rated him because of the restriction of brain conditions to this organic brain syndrome and so that may very well have been the case here and of course we don't you know we don't know what the v a would have said specifically if it had addressed that issue but there's every reason to believe it would come out exactly the same way now years your argument with respect to six well as is evident from the pages from mr morris and the appeal brief before the veterans court there is no reference to the argument that you know regardless of whether or  not the board was required to review the discontinuance that section three point three four three should have been applied anyway there's simply nothing in the brief to raise that issue and in fact in the current court summarize issues it understood to be a warrant in its own opinion on paper and in the joint appendix after just four and five and if you look at those you'll see that the the veterans court understood the issues for it to mr morrison's interpretation was correct there's no understanding by the veterans court certainly that it was called upon to proceed to reach an interpretation of section three point three four three and that's very simply because that question wasn't presented to the court the the the board below in two thousand and nine certainly reached that issue and extensively but the veterans court is not required to reach to it on to issues that were decided by the didn't it was dated for that and didn't mention the exam schedule for not december one thousand and one but the v a understood it as an indication for mr morrison that he was willing to appear for reexamination  not opened as an appeal or anything else in fact the v a respond to him and say we're treating this as a request for a new example but you should know we're not treating this as a notice of disagreement as  cutting you off which means that you won't have the benefit of three four three there's no indication in the record that there was such a communication there's no way to know exactly what the v a told him because there were several phone calls but the content just very briefly and i appreciate the additional time just to answer your question just bryson from before the rules to permit this continuances and terminations of benefits based on a veteran's admissions and statements so that i again i think that in this situation you were describing where veteran says i'm not cooperate ing i'm not going to show up at the v a would be permitted to discontinue his benefits based on that that he's not cooperating with the process below was that in one nine hundred eighty four the board was required to look at whether the reduction was proper they had to look at three point three four three because the veteran disagreed with the reduction in april the board made that finding the v a has never applied that level we're not asking for a new interpretation a change in the law or anything like that we're just saying that the plain language of the rule at the time required them to consider that issue because as you said judge malley at some point three point three four three comes into play those rules can be read together the lower court errors were that they made a jurisdiction almost stake in making a country finding and they imposed improper