legal errors in this case by the board and by the veterans corps wrongly kept mr scott's disability rating at fifty percent rather than the sixty or seventy percent that he may have been entitled to be a regulations and the law of the veterans court requires that when as here a veteran suffers from both listed and unlisted diagnoses of the foot ratings under fifty to eighty four per foot injuries other must be considered in this case the error began when the  discarded that code is not a clickable in the present case and it was continued when the veterans court failed to correct that legal air and remand for a proper determination and a proper legal framework which is the putting aside your argument that shinseki that the failure of the veterans court to follow a rule of law itself presents a legal question and in fact if the veterans court fails to follow its own precedent that constitutes a legal error that will require that so this case on all fours with cases previously in which this court has evaluated the question of whether a veteran's court is properly following its own law that's a legal question that squarely presented and within this court's jurisdiction and that principle of was that you think the considered one way or the other of war has to consider it either to say same symptomatology and therefore never anything or something else that is that's the rule yes that's the rule of law that the veterans court fail to follow in case it's not just the rule that's announced in the n c a a it's of course pursuing just generally to be a regulations that the agency has an obligation to consider all potentially a clickable regulations and then provide the highest possible rating them nearly approximates the veterans disability picture so in this case when there is not a rating a diagnostic code that specifically aligns with the service connected disability it is the obligation of the board to consider what other diagnostic codes are more clickable to that veterans disability and  apply that rule in the context of the ratings of disability to the foot so again to an application application and in the specific context of what disability that the board does have an obligation to consider whether ratings under fifty to eighty four right at this diagnostic code scheduling is to use that schedule to guide their their determinations with respect to disability compensation and i don't think there's a dispute here the secretary doesn't dispute that that is the rule that governs this case that when a veteran has undiagnosed conditions ratings under fifty to eighty four must be considered but that's precisely what the board failed to do in this case and that's where the legal error arose in the court's decision in this case that appendix twenty six is the only place where the board addressed fifty two eighty four and there the board was clear in its statement its had the mistaken belief based on a misunderstanding of copeland that simply because one of mr scott's disability is listed in the diagnostic code ratings under fifty to eighty four were not available that was an error of law for copeland does not address the scenario like here where a veteran presents with both listed and unless to disability and it was that legal error that led the board down the wrong path and artificially kept the board of the ratings that are available in fifty to seventy six i don't think there's a dispute from the secretary that had fifty to eighty four being considered mr scott in this case may have received a higher compensation of sixty or seventy percent and so by artificially tynan's hands at fifty to seventy six the board essentially cut its analysis short and didn't give mr scott the consideration that he was due under all potentially applicable ratings and i think i'm not sure if i remember this right but  decision the matter that we could review and see if that interpretation were therefore to be accepted then is there a legal or so i think the interpretation by the veterans  courts of the board's decision that was that would be within this court's jurisdiction to review as a legal matter if that because it falls within the basic dictates of administrative law that a court of review cannot sort of look behind and make up a rationale interpretation of the board decision i think there's there's two points to that firstly the fundamental problem with this paragraph is not whether it's concerning symptomatology owing to the fibro or to the fla fundamental problem with this sentence is that even if this consistency considers if i promise it's still not discharging that the board's legal obligation which is that considering the symptomatology alone and compensating for it is not enough the agency has an obligation to consider that symptomatology under all potentially a political code and here in this case by by cutting fifty to eighty four out of the analysis the symptomatology was only aligned with codes that regarding the legal question of interpretation of the sentence again i think i would refer back to the basic principle that it's true that this court cannot review the factual findings of the board in the application of lot of fact but this court certainly can always review the question of whether there's going to change any violation and that's the fundamental problem here is that the veterans court in reviewing this board decision read so much into this court decision that is inappropriate you cannot discern it from this board's decision and that's the problem that the veterans court committee in that the veterans court employed i think it's clear that those are based on fact findings that are present in the veterans court decision and i can take them in turn the first rationale by the veterans court was that the board it's an analysis of whether the disability here are the same or different whether there's a single or multiple disabilities or whether they overlap whether the symptomatology from the various diagnoses overlap there's simply nothing in the board's decision to support that kind of conclusion that the veterans court drew and the veterans court has been clear in prior cases for example in fannin vs brown that if the board is going to rely on a rationale of pyramiding in much the must do so explicitly with  terminology of manifestations and four point one four so four point one four uses manifestations and disabilities and this court is referred to symptomatology as an amber and i think there's some overlap in between those different those different labels that have been used i think the crux of the analysis all goes back to the definition of a disability which is the degree of functional impairment as this court recently held in saunders vs will keep that's what we're really looking at here is the degree of functional impairment and in this case the board considered the symptoms did not assign them to either or attribute them to either one of the other the disability and instead just lump them all improperly under fifty to seventy six without considering whether some or any of them were better rated under fifty to eighty four whether that's a symptom or a manifestation that's the analysis that it failed to do with respect to the second rationale by the veterans court which is that the board appropriately selected fifty two seventy six over fifty two eighty four again that is a finding that is not supported by board findings in fact to the contrary the board was explicit and express in its statement that it was not considering fifty to eighty four in that case it undertook no analysis of either the criteria of fifty two eighty four severe moderately severe or moderate for example was a better fit for mr scott's entire disability picture than the criteria fifty two seventy six there could not have been a selection in this case your honor because the board looked only to one called the veterans court finding that the board somehow made a selection between fifty to seventy six in fifty to eighty four cannot be squared with the board's expressed statement at appendix twenty six that it was not considering fifty to eighty four in the present case to address briefly the secretary's arguments regarding various of the statements in the board's decision and we've explained in our reply brief why the statements of the secretary's briefing pages eighteen in one thousand are not sufficient to discharge the board's obligation for example the veteran points to points to statements at appendix twenty six where the board states that fifty to seventy six provides a better approximation for the veterans disability picture again these statements are made in the context of having already rejected d c fifty two eighty four so to state that the fifty percent rat fifty to seventy six provides a better approximation as opposed to the thirty percent rating of fifty to seventy six does not speak at all to whether the ratings of fifty to eighty four my in fact be the best approximation for his disability pictures so those statements your honor just don't address the question what do you mean by the best reflects sentiments coming in the context i'm already having rejected fifty to  six thank you i know that paragraph is above the above the paragraph where the board rejects fifty to eighty four but in that paragraph an appendix twenty six the middle paragraph on that page what that the ord discuss in this case is a fifty percent rating under fifty two seventy six and the criteria that are being discussed in that paragraph are the criteria that are listed in your code fifty two seventy six there is no statement or acknowledgement or recognition of the criteria fifty two eighty four in this case and i think we have to read that paragraph together with the paragraph that comes below where the the board states fifty percent rating is the maximum rating assignable think that's a plain statement by the board that it symptomatology is being compensated for in that increased evaluation provided under diagnostic code fifty two seventy six and what the the veterans with v a is required to do under the regulatory scheme under part four of thirty eight c f r is to look at the symptoms that are being presented by one however many i guess my difficulty with with that is that  that in any case it's yes that paragraph sure seems to be only about flaxseed it's important to know your honor that the fibro must have been part of mr scott's a disability picture dating all the way back to his military service and even when he requested an increase rating from thirty percent to fifty percent the fibro most had been considered long this is not a new symptom that arose and more most importantly there are no symptoms that are distinct from the symptoms that he experiences as it relates to the past planets where the board fin finding that the fibro most have symptoms that are distinct and separate from the test plan as what can be reasonably gleaned from reading pages of appendix pages twenty two to twenty seven is that the symptomatology is is indistinguishable he experiences pain which is specifically provided for in diagnostic zero fifty two seventy six tender plan services explicitly provided for in diagnostic code fifty two seventy six that the use of or thought it does not improve his condition explicitly provided for a diagnostic code fifty to seventy six and he has a list it can service connected disability pesah planets which is what fifty to seventy six is for if you look at the diagnostic zero fifty two seventy five sorry fifty two eighty four which is apparently arose later why shouldn't it be considered separately and your honor that's why i made the point earlier that this did not the fibro hmas did not a question of service connection but this history of fibro most have been president for many many years it's not something that was raised on peel to the board in fact when mr scott filed his appeal with the board he specifically it's at page a pin dicks thirty six eight to thirty nine again he references only the past planets because that's a service connected disability for which he has been granted thirty percent at the time and he mentions only diagnostic co fifty to seventy six there is no mention that i have this new symptom or i have symptoms that can be disassociated from the past planets the planets involved the arch of the foot a flattening of the arch of the are in that exact same anatomical location the arch of the foot so what he and the symptoms that are being manifested by those disabilities are the pain the tender plants are surfaces and also that the use of our thought it's do not assist or help with those conditions these conditions are specifically provided for in diagnostic code fifty to seventy six and while there are instances in which if a veteran for example has some sort of unlisted condition under form point two zero one thirty eight c f r the v a may look  innocent not to any combined contribution the fifty to seventy six accounts for the entire disability picture that's the factual finding that the board made it does not relate evaluation not only that but at appendix page twenty six the board finds that the predominant symptoms appear to be pain that increases with the use and mark prone nation of both feet the record also clearly shows that his condition is only minimally improved with the use of heart bad excess and it also says and this is a second paragraph excuse me if you skip down a couple of lines a disability picture percent rating under fifty to seventy six that's her flex the disability picture show and all of the paragraphs that precede that they mention five promise they discuss has a lengthy medical history it's a very comprehensive discussion here about all of his symptoms not just the symptoms that relate to the pest planas but all of the symptoms that relate to that anatomical location of the foot which is for mr scott would be the arches of his feet so it was entirely reasonable for the board to rate mr scott under fifty to seventy six and certainly not resort to fifty to eighty four which doesn't list any of the symptoms that he p head on by concluding that all of the symptoms again not just the ones related to pest planas not even just ones related to fibro minds are all contemplated explicitly under diagnostic code fifty to seventy six and to look to fifty to eighty four in fact would have been unreasonable because what copeland does say at three thirty six is that if a condition is listed in the schedule then the v a must use that rating and otherwise it would essentially result in an impermissible rating by analogy everything that mr it's one thing to say that a condition that is specifically in fifty to seventy six shall not be considered under fifty to eighty four that's called suppose you say there is a condition that's not in fifty to seventy six the symptomatology is the same as the one that's in fifty to seventy six at that point does the board have to consider whether fifty two seventy six necessarily applies or maybe fifty to eighty four overall disability picture that's relevant not the name of the disorder so yes well fibro mess is not listed in the diagnostic in the the the ratings  what the v a did which it should do as it is a truck to buy parts for a thirty eight c f r is to look at the symptomatology and when you have a one for one match for every single symptom that the veteran possesses the appropriate route to take and that is what we believe hopefully and requires and it makes sense like why look elsewhere when you have a rating that one for one matches each and every symptom  and looking at the overall disability picture it encompasses everything that the veteran has presented in terms of symptomatology and again fibro must have been part of the disability picture from the beginning it's not anything new and when he requested increase training there what he has not done and what is important is that he has not to say set apart any symptoms that should be rated under fifty to sixty four or really given the board any reason and the medical evidence doesn't show any reason why it should resort to would look to a different diagnostic oh that doesn't contemplate the symptomatology present and with respect to mr scott's argument there is mention or a violation what the veterans court did hear it with respect to addressing the four point one four pyramiding rule is to really respond to mr scott's argument that he's entitled to this additional separate rating and to explain this is why you ultimately by law that you wouldn't be entitled to this because four point one four says that if you have overlapping or duplicative symptomatology the the v a cannot give you a rating under both diagnostic codes that is not permitted so it is it not a substitution for the board's ration our findings to respond to his argument that somehow he could get possibly a rating under both diagnostic  you just a few quick points your honour's first with respect to judge toronto's question about where is the finding as to whether the the symptoms in this case are owing to one or the other of the two conditions there is none that is the problem there is no finding by the board as to whether the symptoms are owing to his fibro hmas or his past plaintiffs or whether they overlap that's the problem and that's why the veterans courts pyramiding rationale is not correct with respect experiments experiencing throughout the ages twenty three through twenty seven and brief including numbly numbing tingling constant grabbing pain none of those are the correct it listed in the criteria fifty two seventy six so respectfully i do not think there is a one to one match with respect to the medical evidence of fifty to seventy six here with respect to the statement about whether all symptoms are enough in the pot that the top of appendix page twenty seven again there are two reasons that statement is an adequate which is that it's not clear that agency hasn't explained whether that constitutes whether that statement is septic and in considering the fibro massage and more importantly even if it were the board has an obligation to consider the highest appropriate rating and simply recognizing the symptoms under code fifty to seventy six which caps out at fifty percent doesn't discharge that the board's obligation to look at other potentially a political codes and without your honors if you have no furthe