in its interpretation of that particular statute eleven ten is a little bit more complicated the reason why it's important to our client is because the records are a little underdeveloped here when the case if the case goes back down as we believe it should it's possible that the agency would decide that there is a diagnosis here which would take him out of eleven seventeen just wiring eleven ten is important to mr joyner in particular but it's also just important to veterans songes and he says the case precedent that's been around for a long time it's a unique opportunity for this court to address the question as identified as interesting and perplexing in that case it's fair to say that the strip joints are fashioned his claims here as as an eleven seventeen gets right not in eleven ten kids i'm talking about before you enter conviction at the stage of the veterans court you know yes this i mean a fair to the board was and was that it did not address sexual and seventeen that's correct your honor but this court has jurisdiction and can address any decision by the veterans court on a rule of law that it relied on and it plainly did rely on an interpretation of section eleven times here when it said pain alone is not sufficient to constitute a eleven seventeen means that doesn't necessarily mean we have the authority to resurrect a wave to claim the fact that the veterans court spoke on a eleven ten i didn't read their opinion as denying you an entitlement to benefits on eleven ten in a nice express fashion because you didn't appeal that i read their opinion as saying with regard to what is appealed to us let's look at these two statutes side by side and try to appreciate healthy eleven seventeen claims should be handled and what that's that you need i understood your honor what what the veterans for was trying to decide was when i was aboard aired by not addressing section eleven seventeen because as we argued it was reasonably raised by the record in doing that that it was decided what the term disability and the term disability appears in both section eleven ten and se and the veterans court preacher minister joiners claims on the ground legal proposition that pain just isn't good enough they didn't make any factual findings as to whether his evidence he was suffering from pain what sufficient whether it was product any number of things that should be addressed  corroborate the claim is that good enough to affirm the veterans court if if this is a finding that was made by the board if there is a factual finding that would be an alternative run for a f that's at page thirty four in a thirty five and they're addressing the next condition whether there's evidence that his muscles or something wrong with his muscle or joint they're not addressing pain they're not disputing that he's suffering from pain but they're saying it in order to satisfy the statute you need to have an underlying diagnosis and you don't in fact the board went so far as to say that mr joyner was competent to report his symptoms of pain the v a examiner in two thousand and six described him as a reliable historian nobody at any point has disputed that mr joyner is in fact pain at every stage of the way the preacherman it is claimed because they felt pain just not really relevant unless you have an underlying diagnosis and you clearly do not need to have that for section eleven seventeen as a government has been what is it th government conceded that you don't need under eleven seventeen you don't need to if you have pain which is a manifestation of a chronic disability you don't need to be able to link that to an injury or disease or in current and service you get a presumption of service connection so you wouldn't need to show for example that it was tied to you pulled your neck or that you had some sort of illness right but at the same time would you agree that the veteran still has to a slab establish either through medical evidence or maybe even non medical evidence some type of evidence that supports is subjective claim that he's suffering from a yes your honor and the regulations state that you would meet the objective proper ation of your subjective assertions of pain there is evidence in the record that it is the fact that he was treated for pain physicians are not in the habit of prescribing muscle relaxants or anti inflammator illness where you're suffering from pain well so the record close in two thousand and eleven because that's when the board's decision came down it's on a reman mr joyner would be free to submit additional evidence into the record to support his claim for pain all the way misstate what i'm sure the government will tell us what its position is that the way you characterize a minute ago isn't really consistent with my understanding of it i didn't understand the government to be acquiesce in the notion that if he has pain he automatically has a presumption of service connection what i understood the government to be saying and still clearly correct me if i'm wrong is that they're not disputing that evidence of pain could potentially establish or be evidence included in establishing an guy's got pain then then there's more work we need to do under section eleven seventeen and at the veterans court yard by cutting them off just by saying pain is never enough that's what i understand the government to be saying pain alone absence an underlying illness or injury is not a compensable disability under either eleven ten or eleven seventeen to be clear about our concession their internet earns court's decision which is a very narrow and ultimately harmless error we do not concede that under eleven seventeen fifteen alone would be sufficient to to warrant compensation the statute specifically talks about pain as seeing one sign or something that could be a manifestation of an undiagnosed illness so the the piece of evidence here that mr joyner is missing for an eleven seventeen claim is medical evidence that he has an illness there just medical community cannot put a label on that illness and if we look back and if we were to read the veterans court decision and conclude that the federal court's acknowledge that the facts at least statements made regarding pain in the court opinion were wrong that would be a legal error because that's an interpretation of eleven seventeen to the idea that that pain alone that the pain as a manifestation of an undiagnosed illness could not qualify as a disability under eleven seventeen and i think if the court goes a little further in that paragraph on page twelve of the of the joint appendix of the veterans court's decision the veterans court correctly states that the facts are the evidence here is not that mr joyner has a disability for which an examiner is unable to identify a cause i e that might qualify him a lot of the seventeen the evidence here is that mr joyner simply does not have a disability so the factual findings are that you know a so the medical examiner found some six he has no limitation in range of motion the pain in his neck does not interfere with his ability to work or to do chores at home that that would go to whether or not he's ten percent or more disabled with a different section there are no facts findings about what you just said there are no facts i'm going to win here that the pain he complains of doesn't or does allow him to work or allows him to do all i didn't see any of that i think that's exactly the chance point is you know you're absolutely quickly can you just explain to me again i guess i'm just maybe i'm i'm a little confused by what you're saying you can see that the statement pain alone does not constitute a disability is not a correct but i think that the more pain alone is not a compensable disability absent an underlying illness whether it's diagnosed or and i know and you're saying that under one seventeen say there's that you've got pain with assume someone has a say in that that was that got serious pain and you're saying the statute then needs you need a medical opinion to say not just that we can't diagnose the source of the pain but that it's an undiagnosed don't mess yes and maybe i can go back and i think it's absurd and i don't even understand how you can argue this right now on page five of your brief i'm reading in the course of the citing mr joyner section one eleven seventeen claim the veterans court erred by stating that pay the loan does not constitute a disability i don't see how that isn't the whole ball of wax you have admitted the veterans court erred by stating pain alone cannot constitute a disability apropos pain alone can constitute a disability in the governor's acknowledged that so i don't i don't understand what you're saying l that doesn't seem to consist to say there is an undiagnosed illness that results in the pain in order to qualify under one seventy yes and the reason for that is if we and i know it sounds absurd i understand a quarter point but if if the court looks at the  reason why eleven seventeen was enacted by congress was that we had persian gulf enter into returning from service who had a multiplicity of symptoms hair loss t muscle pain joint pain and the medical community could not identify a diagnosis at that point that there was the medical evidence the medical research had not yet been able to identify it knew there was something wrong with the saturn but couldn't identify and the label for that and what congress and the secretary so in this case if you come in and you say i've got serious pain and the physicians say and we don't we can't identify the cost of that page is that sufficient under one seventeen or  diagnosis after all likely diagnostic possibilities for such abnormalities have been ruled out so yes the the the the case would be that the veteran has these symptoms and the he gets out of service and he has a car accident he should have a chiropractor afterwards for additional neck pain if the veterans course had held that we find he doesn't have an undiagnosed illness and the pain you complain of now sir is the result of the car accident more likely than not as opposed to something occurred in service that would be well thought of our jurisdiction in a whole different ball of wax nobody said anything like that there is nothing in this veterans court opinion that relies upon any such fact findings  it's just a pain not good enough go away and the veterans court correctly stated that he does not have a current disability whether it's diagnosed or under diagnosed so reached the correct conclusion he said because he because pain isn't a disability he doesn't have a current disability because pain alone isn't a disability your grief unequivocally says that was a error and it would be harmless error because you still need that additional i don't actually tory requirement of an undiagnosed illness he'd have to be tied in a medical way in a way that the doctor says there is no other explanation for this he was probably exposed to something during personal service is that really it i mean you just say that it's result of an undiagnosed illness so you need to have medical testimony that i have ruled out every possible conceivable diagnostic  think a binder so your argument right there has to be objective evidence to support it and i understand that there can opinions which you included in the back or the appendix that say things like for example taking time off of work seen chiropractors going to physical therapist there has to be objective additional evidence that would support no a veteran coming in saying same teams my understanding is your argument is that's not enough and i don't understand them to be disputing the idea that there has to additionally be some objective evidence in those cases i mean so i'm not sure that the argument you're making would really be the sky is falling because there has to be some objective evidence i get the estimate that you could manufacture right but you could also manufacture an eye problem what letter is on the chart on a letter what letter moon looks like in the maybe a sailboat you know i mean what's the difference between that and my neck hurts when i turn it to the left you know and both of those are diagnostic of valuations are we going to say when a veteran can't read in a chart that we're not going to credit that as having an eye condition because the doctor can actually see a scar on his cornea some sort of no absolutely not that the bottom line is that that subjective allegations of pain  cs certainly that medical examiner has to take that into consideration as well as objective evidence such as missing work limitations of motion and range of motion that can be observed by a medical professional but the bottom line here page eight twelve where seems like this was all mixed up mumbo jumbo with what you have disavow a guess which is pain alone i mean that that sort of insects everything they say but i seems like whatever their analysis did it's just odd it's just all and i thought you kind of conceded that at the till the last part of that paragraph i think the veterans word gets it correct ans and that's constitute a disability so once you've just about all that you say that's wrong then how do you put how do we even know whether that what the c h p was saying when it then said that the evidence here that missed is that mr joine really important to look at the context of eleven seventeen the purpose was to to fill the presumption where the medical community wasn't able to put labels on what were real illnesses that persian gulf that are and were returning with  was not meant to be this is not a factual scenario that congress intended when it went it and acted alone you know we think i thought there was some sort of inherent presumption built into eleven seventeen in your suggestion that the veteran then has the burden to get payment under eleven seventeen to get a medical opinion to substantiate and rules out every conceivable alternative of cause of whatever manifestation is showing like the cheese or whatever that the presumption is of service connection that there's a nexus between service and persian gulf in persian gulf and what the illness and burden under one seventeen is to rule out any conceivable cause or diagnosis that could account for the symptoms he's manifesting before he could get paid  i thought that was a little is that what you're saying are you saying literally you have to get a doctor to rule out every other possible conceivable that the regulation three point three one seven and a one you know while in iraq and then at the same time little to by history physical examination and laboratory tests of the not be attributed to any known clinical diagnosis is that the way you understand yes and there is no need to be an undiagnosed illness and when i was when i was actually pulling was the regulatory history from regulations that sixty federal register six six six zero and what what the secretary said in that if the signs and symptoms are not characteristic of a known clinical diagnosis the physician should so indicate this conforms with the usual standards of medical practice so that's the kind of medical evidence that the secretary is expecting  that's not the medical evidence that was present just to be clear there's two different types of medical evidence we've been talking about this morning one is the kind that corroborate some kind of symptom and then the other one of the other kind of medical evidence is medical evidence that whatever your condition is we can't beat it's not attributable to some identifiable condition is that right i mean any second the second is is sort of both the conclusion or the result of taking into consideration you know the reports of subjective symptoms things that you know x rays medical exam a personal observation by the doctor reports from you know family members who can observe that the individual you know i sleeping all day long and is too tired to go to work and you know those are all the kinds of things that have to be taken into consideration but ultimately what we have i mean ultimately the test is not the facts that were presented to the board hearing it was right where did you that it's a court looks at what the veterans for said in comparison to what the statute requires that statement alone isn't enough to get mr joy arrhenius mr joyner still asked to be able to identify something i know conflate the absence of a disability with the presence of a disability that is undiagnosed of which there was no evidence in the record so what are they saying the this i mean that the only disability that mr joint that that the met that that there was an actual conclusion here was that mr turner had a surgical straight and has been fully resolved so he does not have a current disability based upon any of the medical evidence here  that absence of a disability is different from there's something seriously wrong with you we just can't put a label on it which is what eleven seventeen was was meant to to help or those with the presence of a disability that is undiagnosed of which there is no evidence of record are they talking about there's no evidence of records that there's pain or back to their first sentence that pain doesn't matter  pain certainly matters but it is what is a sign or a symptom it's a manifestation of something and it's that something could be you know one of these sort of persian gulf syndrome type illnesses that veterans were returning from were it could be not constitute a disability that idea that pain is not enough infected every step of this process the reason why there's no medical examiner indication of what is going to or whether disabling is because because the  and he says there's just an understanding in this process that pain isn't good enough so the right thing to do here is to remain and to sort all this out or no fact findings by either the board or the veterans court as to sufficiency was evidence of pain the extent to which thank you thank you