diagnostic and statistical manual of mental disorders by the american psychiatric association for the v a s general rating formula for mental disorders in this case against scores will vary widely they varied from lows of forty  of seventy the facts in this case in that regard are not in dispute mr sure field does not ask this court to refute the facts of this case and does not ask this for it to make a factual determination mr sure to ask this court to review and interpret the provisions of thirty eight c f r four point one three of specifically as they relate to the provisions of four point three and four point seven what is your consider all of the gaps scores by making a selective determination that certain gaps fours were more provocative than other gas for well end up dead i guess i don't understand what you just set if it can fit you say you didn't happened was is that the board took v a medical records and all of the medical records that assigned gas wars in this case are from the v a it differentiated between gap scores that were assigned by v a examiners against gas scores that were provided by treating mental health professionals not with the consent of both and they did consider both but in that consideration they gave more probative value to the gas scores that were assigned by the v a exams i believe that that is inconsistent with the plain language of the v a s own regulation in that the v a s regulations expressly require all evidence is provocative as it relates to the evaluation of a psyche and it was idealistic about what regulations we're in the regulation what would be in the regulations i believe it's four point o requires the consideration of all evidence each disability must be considered from the point of view of the veteran working or seeking work that is the purpose of the assignment of a g s score specific regulations four point three and four point seven that apply when you are evaluating the next higher rating and the difference between two ratings we are asked in the mental health context a seventy percent rating and one hundred percent rating he's rated at seventy the only other available rating is one hundred percent and what they did in my view was to not follow their own regulations under four point three and four point seven when considering the next higher rating when clearly this conflict thing evident of gas scores raised reasonable doubt why do certain then go didn't the lower court three and four point seven equitable is the test under fifty one zero seven that is the test for reasonable doubt under the general proposition as provided by congress the specifics of the valuation are provided insect hard for a title thirty eight specifically in four point three and four point three does not talk about and approx with balance of and the disability picture is the totality of the limitations that are imposed by this psychiatric disorder and by selectively saying we're only going to look at v a examiners gas corps as what you're on and that was looking at everything is not what is required by four point three and four point seven and i fly by four point three when you say that looking at you could look at everything and then what is required with looking at everything and evaluating let me back up first it goes to the error of the court below that the court below said that the board wasn't required to look at the v a s own regulations so before we even start with what is required by those regulations it was error to say that the board was not required to consider and apply all the political provisions of law and regulation these are a political provisions of law and regulation when you're assigning a rating so you schemes because it says you have to look at the totality because of the conflicting nature implicit in psychiatric evaluation yes judge i'm sure but when you look at four point three and and  that the disability had to go from seventy to one hundred percent yes your honor because the question is a and really the problem i'm having is we have construed what reasonable doubt me and we've  looked at this in terms of whether the end result either way one way or the other lane when the evidence is a necklace of and i don't see that you have you have presented arguments that america no your honor it's a very important understand that first what i'm saying is is that the board must consider these when there is as there is here clearly conflicting evidence amongst their own mental  made the determination that they were going to rely upon the to the examinations as being more probative of the degree of disability that's not that's not saying they can consider all the evidence and that's just saying that they found certain evidence more problems when the court examine this below it said no they gave an explanation that explained why they did that but that explanation for why they relied upon that evidence is not good enough under four point three because four point three says that when the reasonable doubt arises and i'm suggesting that when the v a s own mental health professionals differ about the decisive varity of the condition and in this case we're dealing with a conflict between treating physicians and examining physicians and the board gave the venice it of the doubt to the examining so years where it is and i think that analogy started with the question when they go to point four point three when they request then they have to look at four point seven as well and they have to examine the total disability picture and in examining the total disability picture they have to  determine whether or not a reasonable doubt has arisen when you have multiple gas scores that are below forty and only two from v a examiners that are above seventy and therefore reasonable doubt has arisen and this is not the approximate balance or echo poise analysis that's required by fifty one o seven this is a regulatory specific regulation that addresses reasonable doubt in the context of making the assignment of a psychiatric evaluation in this case the difference between a seventy percent rating and a one hundred percent rating and it the v a s own regulations says and when there is such a difference you resolve it in favor of the veteran and you go for the next higher rate of just some of that but i just want to see if i can see really four point one three in your view requires that if there is any evidence the other stuff any then the board is required to move on to four point three and four point seven and apply not at the close rules but a rule that says if there's any evidence on that on side even if there is an enormous amount of evidence on the other side the veteran when we have i don't go that far i say first that they must apply and to me they must consider and apply four point three and four point seven which the board didn't do and the court below didn't require the board to do and once their their own regulations describe a defining the disability picture they have the  of fifty one a seven year honor and clearly based on the language fit in the standard asking us to really weigh the evidence to to reconsider the disability rules absolutely not i'm asking you to do is to determine whether or not the v a has to follow its own regulations essential what the v a is saying we've got to get out jail free card because fifty one of seven says it's always got to be an echo port four point three actually incorporate the definition from the regulations at analysis in consideration of four point three then possibly there would have been no error here but the error here was if they never went to four point three what was your takeaway so that way that they weigh the evidence and four point  guess i understand that but that with all due respect we're focusing way too much on ethical poise and ignoring the v a s regulatory scheme the v a has set out by regulation how you're supposed to evaluate and they didn't comply with those regulations and they didn't consider them particularly in relationship to consideration of the next higher rating under four point seven as well as the reasonable doubt under four point three and they can't simply pick and choose and say well we did generally consider them no they have to conserve and apply all of clickable provisions or they haven't done it correctly and if they haven't done it correctly the mr sure feels did not get the benefit consider this is a great case to look at because it shows where the board made no errors of any kind so you're not suggesting here no not at all if you're honest turn to page one hundred sixty of the joint appendix this is the board decision and we can see exactly what the board did here board's considering is mr fairfield in the fifty percent category or in the seventy percent category the board said these two scores however suggest that a seventy percent evaluation may be warranted because such force contemplate some impairment in reality have clear communication or major impairment in several areas that's all on page one sixty at the bottom paragraph or then goes on a page one sixty one after describing all of the objective evidence of mr fairfield disability the board says it's about the middle of the paragraph thus the evidence shows occasional social and occupational parent with the c's in most areas including work family relations judgement and move sense goes on the board was weighing whether mr fill in the fifty category and seventy or in seven categories and the work including did that the disability picture more closely approximated to seventy percent category and therefore document that in every case the boards to evaluate not just under one point three but also under four three and four seven no your honor if there is some doubt some reasonable doubt between two ratings then the board needs to consider how four point three will apply if there's some question as to which of two ratings the propre in the board have to consider four point seven in this case the board found no reasonable doubt at all i was i was pointing your honour's to the analysis of the board conducted between fifty percent and seventy percent mr fairfield argument is that there's some reasonable doubt between seventy and a hundred but there's nothing in the board opinion to suggest there's any doubt between those two readings if there is any doubt in the earlier two ratings than i was putting o not a reasonable doubt here it's it's pretty clear from this three page analysis that the board was saying that any doubt if there was any doubt with between fifty and seventy now between seventy one hundred and this long paragraph on page one fifty two the board says one hundred percent of valuation is not for application the board says in the military graph the evidence indicates that the veteran was not totally socially impair although this into mythology indicates severe social and occupational impairment does not demonstrate total impairment so the board specifically rejecting the notion that one hundred percent is appropriate here the entirety of mr sure feels argument for why a hundred percent might be appropriate is these two legal question you just say that everybody agrees with the result here is that one point three or four point seven are things that need to be said no you're i i wanted to point out to the court the excellent analysis o this case and why even if four point three and four point seven were to be applied here then the way that they were applied was appropriate well did you read that book point three m four point seven need to be applied in every analysis and if so is that a legal question which we have just over which we have three four point three and four point seven are applicable by their very nature as regulations like the first amendment due process clause there are a pleasurable they apply whenever a rating is done that's not to say they need to be discussed in every once the boards reach that conclusion that there is a reasonable doubt then the board needs to discuss four point three but until that point the board need not discuss four point three of course in the back of the board members mind is that four point three and four point seven exists should i find any reasonable that's correct your honor and that's the conclusion from this this court's ortiz decision the these are regulations designed to tell a rating examiner when he is deciding which of two ratings to give to give the benefit of the doubt to the better and how to do that that's not something for this court to review it is reviewable at the veterans court after the board makes it that initial the third the uk regional office makes its missile determination then the board reviews that and then it gets b based on the finding of fact that there was a reasonable doubt raised here here there is no such finding in fact mr surveiled argues that because there are a number j f four is there necessarily was a finding of fact that there is reasonable doubt that's simply not the case  i presume he's arguing as a matter of law that if there are a number of different j s scores that that must raise that reasonable doubt of course the problem with that argument is whenever there is more than one examination that argument would suggest that there's always a reasonable doubt between which is the two examinations is correct so court explained in ortiz the threshold question is whether there's a reasonable doubt once there's a reasonable doubt raised then yes the board needs to discuss four point three and how it applies until then the board doesn't have to discuss four point  knows that mr sure feels grief doesn't actually raise four point three and four point seven as independent arguments as he did before the veterans court he differentiate out these three arguments here for whatever reason thoroughly explains why four point three zero on its face doesn't mention or refer to four point three four point seven if those when those two regulations apply they apply because of their very nature not because one four point one but three zero brings them in somehow proceedings it's required to consider it to consider them as again it's generally applicable and if it finds reasonable doubt then it has to had to consider how four point three is applied and when in doubt between two case were were mistaken for saying they didn't consider it we know because there's nothing in the board's opinion that says there was any reasonable doubt raised here if there is if there were any doubt expressed in the board's decision know that because nothing about the board's opinion suggested there was any doubt in the bettman sports said that the veterans court clearly concluded that one hundred percent would not applicable and that seventy percent was the veteran forward interpretating the board's decision that there was no reasonable doubt here and without there being reasonable doubt the board need not  probative evidence and the board here specifically considered each of the g s scores and said that they were probative so that that's not really in question i think there were please the court if i understand the government's argument that the v a regulations particularly in the four point one of two four point one three zero are simply elevator music they're background noise you really don't have to as an institution follow you don't have to discuss them you don't have to consider that simply cannot be the law for point two even if we mentioned that you have them and you have to consider them even if aren't really presented what i'm trying to do in my brief is to show the court the regulatory scheme beginning with four point two and running through four point seven in each of those specific regulations it talks about a consistent picture and it talks about a disability picture that deals specifically with work if you look at what the board did the board did not focus on his inability to work we point out in our bre several specific references to his inability to work that are expressed both by gaff scores and by vocational experts that indicate that this veteran will not be able to hold a job will not be able to attend or concentrate or relate with people even for the simplest tasks in a working said now that's the fundamental criteria under four point one three zero zero for the assignment of a why one hundred percent rating  total occupational impairment when they examined the evidence because they didn't consider the statutory scheme because they didn't look at what their own regulations require they didn't focus as they should have this is about the interpretation of the regulatory scheme the state government just conceded that under four point one three yo they must consider all pro question is not did they or didn't they considered but that they considered as their regulatory scheme requirements and that regulatory scheme requires particularly in four point seven eight consideration of what the total  disability picture make a specific finding that even though impaired he is not totally impaired he is able to work vase the pa the evidence in the record and this record does not support  what they omitted they omitted the relevance of they used the magic words they did use total impairment but what is required is a description of the disability picture in the context of his ability to work or not to work that's what their regulations fleshed out that defines what that total impairment is the inability to work think of them thank you very much