CCK Partner Zachary Stolz Delivers En Banc Oral Argument in Case Regarding Extraschedular Referral

Video Transcription.

Clerk of Court: All rise. Oyey, oyey, oyey! The United States Court of Appeals for Veterans Claims is now in session.  The Honorable Robert N. Davis, Chief Judge presiding.  All those who have business before this court draw near and you shall be heard.  God bless the United States and this honorable court.  Please be seated.

Judge Davis: Good morning.  I have a brief announcement before I call the case.  We will be immediately convening a ceremonial session after this oral argument for the court in recognition of its 30th anniversary.  At the creation and beginning of the court we will be celebrating throughout the next twelve months with a large ceremony in the Fall of 2019.  So those of you who would like to stay, I’d invite you to do so.  It should be interesting and fun.  And we will be recording it for historical purposes.  That’s all I had on that one. I’m Chief Judge Davis. To my right is Judge Schoelen, Bartley, Allen and Toth.  To my left is Judges Pietsch, Greenberg, Meredith, and Falvey.  We’re here today in the matter of Morgan against Wilkie.  Docket number 17-0098 to consider among other things whether the Board of Veterans Appeals erred by not referring Mr. Morgan’s service-connected hearing loss for extraschedular consideration.  Will counsel for both parties please note your appearance for the record.

Mr. Stolz: For the appellant, Zachary Stolz, is arguing. With me at counsel’s table, Amy Odom, from the law firm Chisholm Chisholm & Kilpatrick.

Judge Davis: Great, welcome.

Mr. Wyatt: Gordon Wyatt, arguing for the Secretary.

Judge Davis: Welcome.  Thank you.  Are both parties ready to proceed?

Mr. Stolz: I am, your honor.

Mr. Wyatt: Yes, your honor.

Judge Davis: Each party will have thirty minutes to present your respective arguments. Counsel for the appellant, do you wish to reserve a portion of your time for rebuttal?

Mr. Stolz: Ten minutes if I may your honor.

Judge Davis: Very well.  Thank you. Mr. Stolz you may proceed.

Mr. Stolz: Good morning Chief Judge Davis, your honors and may it please the court.  The court issued an order in which it asked five questions and had some issues to discuss.  I’d like to start there.  The framework laid out in Thun v. Peake remains viable.  The test has been clarified by three precedent cases handed down after the first oral argument in this case: King, Petermann, and Spellers.  Each case helps to clarify that text.  King instructs that under Thun Step one- an adjudicator compare the symptoms and severity of a disability against what is contemplated in the relevant diagnostic code.  It affirmed Doucet’s distinction that the symptoms covered by the diagnostic code are audiological in nature.  Petermann explained that the severity of symptoms should also be compared against the relative diagnostic code.  Both cases clarified that there are two components to Thun Step one.  The first component compares symptoms and the symptoms not the rating criteria provide a basis for possible referral.  The first component also compares severity to symptoms possibly already covered by the diagnostic code.  It is in the second step that an adjudicator addresses the effects on a veteran’s employment.  Importantly in both steps, the adjudicator must consider severity.  Assessing the adequacy of the rating criteria under element one rest in part on determining whether a service-connected disability affects employment in ways not contemplated by the rating schedular- that is a quote from Thun.

Judge Davis: Mr. Stolz, can I ask does the amended regulation have any impact on the analytical model that you indicated in Thun?

Mr. Stolz: The analytical model, no your honor, the clarification or the regulation change as addressed in the parties after the first oral argument we submitted- we both submitted supplemental memorandum of law, which seems to indicate that we agree, that the only thing that has really changed is no combined effects analysis needs to be done anymore in accordance with the Johnsons case.  And the fact that referral doesn’t necessarily have to have a middle adjudicator at the Board, the regional office level can make the determination in the first instance.  The analysis of the Thun, King, Petermann, Doucet, Kuppamala, et. al, remains viable.

Judge Bartley: I noticed that you characterized step one of Thun as comparing the symptoms in the criteria to the symptoms that the veteran has.  Where does- where, if at all, does functional effects come in to that analysis.

Mr. Stolz: Yes, functional effects- dating back, I believe to the Martinet case. Especially in the hearing loss context.  It fits in to step one.  Functional effects as we read the case law is a way for an examiner or for the evidence of record to illuminate or to help adjudicate under step one.  So the functional effects fall under that category.  They can also permeate a little bit to step two because the functional effects may be effects on employment, which would be Thun step two.  So it seems that functional effects are a way to help adjudicators make the Thun analysis under steps one and two.

Judge Bartley: And one of your arguments, I believe, in this case was that the veteran had some effects of hearing loss that would affect his ability to drive or be in traffic safely.

Mr. Stolz: Yes your honor.

Judge Bartley: So is that the kind of symptom, because we did start out with symptoms here, when you began talking.  Is that the kind of symptom that should be contemplated under 3.321?

Mr. Stolz: It’s a symptom and it’s a severity issue.  Because it- this is perhaps some of the confusion that happens in extraschedular analysis.  It’s kind of developed in this way where there are these blinders on as to Thun step one that you only kind of look at symptoms and severity.  It’s broader than that and because the functional effects illuminate step one. I would say your honor that it does go under step one, but it also kind of goes under step two. Which the siloing off effect that kind of happen after the Yancy case. Where step one and step two became this very separate steps that one has to go through, isn’t necessarily practical because severity is a component of Thun step one and two and so it’s hard to just roll off what the functional effects could be even if it’s under step one or step two.  I hope I’m making some sense there but the answer to your honor’s question is it goes under signs and symptoms.

Judge Bartley: So it is a- so a traffic safety or driving safety impact- I’m bringing in the word impact instead of effect.

Mr. Stolz: Yes, your honor.

Judge Bartley: That is the kind of thing you believe should be considered under 3.321.

Mr. Stolz: Yes.

Judge Bartley: And I note that 4.21 which is titled- 38 CFR 4.21 is titled application of rating schedule.  Oops- no, not 4.21.  Actually, I think it’s 4.10 is titled functional impairment and that talks about functional effects, essentially, I think.  And it says the basis of disability vows is the ability of the body as a whole to function in the ordinary conditions of daily life including employment.  And then it goes further and says, “This imposes upon the medical examiner the responsibility of furnishing in addition to etiological, anatomical, pathological laboratory and prognostic data required for ordinary medical classification, full description of the effects of a disability upon the person’s ordinary activity.”  Now that’s called functional impairment and then it talked about, essentially functional effects.  So, does the inclusion of functional impairment and potentially functional effects in 4.10 mean that those are the kinds of things that should be considered in the actual rating of the usual schedule for rating disabilities and not in the- not kind of corralled in the extraschedular environment?

Mr. Stolz: No. I think it can give both.  Because no matter what happens in an adjudication, the rating officer, or the Board hearing officer, or whomever is going to have to discuss the rating criteria found in the schedular criteria.  And so, 4.10 informs both analyses.  Functional effects can go, and I think that the sliding scale that the court is kind of developing.  The Spellers case kind of discusses the other side of times when the extraschedular analysis isn’t going to work because the diagnostic codes may be broad.  Whereas if you’re in the hearing loss realm which we are today, the schedular criteria don’t really contemplate the functional effects.  And so I think 4.10, your honor, I would submit 4.10, your honor, covers both scenarios.  And that is what the examiners should be doing in a perfect world.  The examiners would talk about the functional effects.  So that then the adjudicator could determine what falls under diagnostic criteria and what falls under extraschedular criteria.

Judge Schoelen: So, do you concede that there are diagnostic codes that basically we should just take off the top and say, extraschedular isn’t going to work in this context of maybe range of motion?

Mr. Stolz: No. I don’t think they should be taken off the top.  They should just be chopped out.  I think that it is still, or I will submit that it is still an analysis that should best be done by the first adjudicators- the regional office and the Board.  It may very well be that the Board, or the regional office, or the director- whomever, determines that that diagnostic code is such that an extraschedular evaluation doesn’t do anything for the betterment.  But I still think the analysis should be done, your honor.  I don’t know that there should be a black letter rule that you know, psychiatric conditions because they have more of a broad diagnostic criteria- are just taken off.  You can never get an extraschedular rating for that.  Frankly, after Spellers, it could be harder.  But there are scenarios in which that diagnostic criteria would not cover a veteran’s individual condition.  And the idea behind 3.321 is after all the broad concept of according justice.  And so, at the very least, even if an extraschedular rating is not awarded, the analysis should be done if it’s raised by the record.

Judge Schoelen: There’s been some criticism that 3.321 is supposed to be for exceptional circumstances.  And that basically every Board decision I pick up, has an extraschedular analysis in it.  So how do you respond at the criticism that this exception has potentially swallowed the rule?

Mr. Stolz:  It doesn’t- it’s a regulation.  It’s in the code of federal regulations – so because it is there- the exception– the awards may be under exceptional conditions or unusual conditions.  But the way that the analysis should be done, should happen in cases in which these are raised.  An exception could be read and it seems to have been read in the case law as being outside of the diagnostic criteria.  And the entire idea is to take an individual veteran.  And so, it is not something that even though it says exceptional or unusual and it looks like it should be a rare thing- it should be a rare award, doesn’t mean that the analysis shouldn’t be done and that a veteran shouldn’t be given the chance at the many stops of the adjudication process in the VA system, to have the opportunity to explain why did his condition is not covered under the diagnostic code, and hearing loss is a perfect example of why that would be.

Judge Davis: Mr. Stolz, the Doucet panel struggled with the lack of a lot of specific symptomatology in the hearing loss area.  In fact, Judge Shoelen and I and Judge Lance were on that panel.  And I remember, with all these cases that are recent enough where I actually do remember the case.  I remember really trying to figure out what fell in to the pool, if you will, of hearing loss related issues versus issues that may not be so directly connected to hearing loss.  And I think the Doucet opinion gave examples of what – and the phrase I recall we struggle with was what was contemplated by the diagnostic code and the rating schedule.  I think some examples included dizziness and ear pain and things that weren’t necessarily directly part of the rating code.  How do you- or can you give us a guide that will maybe draw a bright line between things that are impacted by hearing loss versus things that are not a part of the schedular- or not contemplated by the schedular rating.

Mr. Stolz: Bright lines are hard to come by in extraschedular analysis.  So, I don’t- your honor, I’m sorry.  I don’t believe I can give you a bright line rule.  But the court is going down the road of giving really good guidance to the Board and to the regional offices.  This is a judicial and regulatory test.  It takes a little bit of time to flush that out.  And so, while Doucet opened the door for Martinet before and then Doucet opened the door for a more robust analysis of a diagnostic code that is unrealistically compensates hearing loss, in my opinion.  Once it opened the door, King came along and flushed it out a bit more.  And so, the bright line examples in Doucet are very, very helpful, but again the regulation is to accord justice.  And so really this analysis, your honor- we stand today in an appellate court. The analysis should be done first by the rating officers at the agency. And that would give your honors more of an opportunity to review and flush out this test. Bright line is something- I don’t think can happen under 3.321. But the more cases that come, the more of an idea that we have about how this should be done at the agency level. And that’s the problem in Mr. Morgan’s case. You know, we have like sort of — you have Doucet and King- but actually we have King and Petermann over kind of on one side and that was found to be error and you got the other side where Spellers there was no error in the extraschedular analysis.  Doucet, there’s no error in the extraschedular analysis.  But these guide posts are starting to be established.  And in Mr. Morgan’s case, it falls more on the side of the King and Petermann kind of scale because there are these things that are not- or these symptoms and severity that are not considered in the diagnostic criteria and the Board decision and hearing are so deficient here. The Board even, at page I think 16 and 17 of the record, says you have all these lay statements- and I’m paraphrasing. You have all these lay statements but sorry, the way the diagnostic criteria works is you do pure tone threshold. They actually say the Board says that in case and this gives a short analysis of extraschedular. That’s the problem. And the other problem- I know it wasn’t addressing the five questions but our first argument in this case was actually the hearing- not the Board hearing deficiency under Bryant, because he starts- Mr. Morgan starts to talk about these effects. He starts to talk about the fact that he believes it’s more severe than the ten percent awarded. And then the hearing just kind of ends. And we’re not asking for a pre-adjudication of the case.  But we are asking- and the reason that I’m saying this is because that’s what’s going to help the court adjudicate this.  Is more of us- sorry —

Judge Schoelen: Mr.- if I can interrupt.  With regard to severity in the hearing loss context, how would you assert the Board conduct that analysis and the court review on analysis?  Based on the grid that we get.

Mr. Stolz: Well the grid, the grid part of this was done fine. There’s no error in the grid part of this. That’s kind of the beauty of hearing loss.  Is that part is easy-

Judge Schoelen: Right. But that’s all we got.

Mr. Stolz: Right. And so that’s all- and that’s all we’ve got.  But then there’s this regulation that stays out there- that’s a tough one- that says to accord justice. And so easy, in hearing loss only. I’m not saying that this is always and easy job. It’s far from it.  And I respect what the Board and regional offices have to do every day. It’s tough.  But at least for this one is pretty easy.  The beeps in the audio metric testing spit out a result.  The human element of the adjudication is the part that’s deficient here because no one bothered to determine- even though there was evidence in the record- no one bothered to determine what this hearing loss was causing Mr. Morgan to actually go through in his daily life and then his effects on his employability.

Judge Bartley: And were those things that you’re talking about the effects on his daily life were they in some way exceptional for someone who has hearing loss? Or were they typical of the kinds of things that people with hearing loss would experience?

Mr. Stolz: They’re outside of the diagnostic criteria. So that’s the test as far as my reading of the case law. The test is not, this is so beyond the pale that we need to do something. The test is, is it outside the diagnostic criteria and here it is. Again, the sliding scale, a little bit more like King than like Doucet.

Judge Bartley: My question —

Judge Pietsch: Can we get back to – sorry. Can we get back to the evidence here in this case, because is you’ve acknowledged earlier that the Thun analysis doesn’t take place unless the issue of extraschedular is either specifically raised or reasonably raised by the record. You’re not contending that it was specifically raised below, are you?

Mr. Stolz: We are not.

Judge Pietsch: So in order to be reasonably raised by the record is it the three documents that you pointed to in your brief- something that we should be considering it’s record at 344, 436 and 750?

Mr. Stolz: Yes and again the Board’s hearing- the hearing that was held which I think was in what you said-

Judge Pietsch: So one of those documents that you’re talking about like in 436 which you point to for safety issues with driving. This is what that document reflects in response to the question, does the veteran’s Tinnitus impact ordinary conditions of daily life including ability to work. Mr. Morgan said that he has to have the windows down on his car so he can hear traffic. So in our- be prepared to discuss so when we ask the question of in order to reasonably raise the issue, does the evidence have to on its face relate to the condition for which you’re seeking an extraschedular rating?

Mr. Stolz: The evidence does have to relate. I’ve two responses to that. And I recognize that it is in under the tinnitus portion of a hearing loss questionnaire. That is one part of the evidence that we submit reasonable raises, the analysis should be done here. The exam should be read as a whole, it’s in the hearing loss examination.

Judge Pietsch: But there is a separate page of that with the functional effects of hearing loss itself.

Mr. Stolz: Yes, your honor.  And the Board should have conducted this analysis as well.  The Board should have conducted the analysis of what the functional effects are and should’ve answered your honor’s question in the first instance.  I agree that it does slide away a little bit from whether it was reasonably raised in this case, but the other parts of the record do still reasonably raise it towards the analysis.

Judge Pietsch: So you’ve been assuming that rolling the windows down is somehow related to the hearing loss as supposed to tinnitus.  What would lead us to believe that that itself causes a safety hazard?  There’s another safety precaution here and here you’re suggesting that driving with the windows down is inherently dangerous?

Judge Davis: Before you answer that, Counsel, your time has expired.  Could you have five minutes Dawn? Go ahead.

Mr. Stolz: Thank you your honor.  That analysis again should have been done by the Board.  And so answering that at this level of the adjudication is tough which is why the Board’s decision should be vacated in the decision we have.  What makes it a little bit- what makes Morgan’s case a little bit stronger, and I admit it’s a little bit- it’s an analytical step that your honor is asking about.  And just in all honesty, that’s just the way that it can be couched that way.  It can be couched as something that is a safety precaution.  If you roll your window down today in Washington D.C., I would submit that’s a safety hazard.

Judge Meredith:  But there’s nothing in the record that suggests that.

Mr. Stolz: There is not.  But the Board did recognize that an extraschedular analysis should be conducted.  It undertook it and then —

Judge Meredith: Did it?

Judge Allen: Well, I want to ask that because I don’t- I have no conception of what the Board actually did here.  Because it starts out and it says- it’s on page 17 on the record- it says the Board has considered whether referral for an extraschedular rating is warranted, which it sounds to me like it recognized that something was raised about it.  But then after doing a little bit of discussion, it says, thus the issue is not been raised.  So it starts out by saying it’s doing the analysis- it does a little bit of that- and then at the end it says it’s not raised.  What do we do with that?

Mr. Stolz: Remand it for more accurate reasons or basis so that we understand what they’re talking about.  That is part of the problem of this case and Judge Meredith, your question its of course a good one that should be done by the Board.  And the first instance, the page before that Judge Allen- the Board basically says- specifically says disability raise from hearing impairment are derived by a mechanical application of audio metric evaluation results to the rating schedule.  That’s not true.  That’s only true for the diagnostic criteria.  And then on the next page it just says, yeah but extraschedular wasn’t really raised here without any analysis of it.  And so that’s the reasons or bases problem in this case.

Judge Meredith: Could we just get back to the other- to the evidence that may have reasonably raised the issue in your view.  We talked about the safety issues.  You’ve also argued that there’s evidence of marital discord and social isolation.  So I think the records that you pointed to again- record at 244 from the hearing before the Board where the appellant was asked about the functional impairments caused by his hearing loss.  He says he’s asked to turn the TV down.  That it impacts his daily life with his spouse and then he has to ask people to repeat himself.  You pointed to record at 436 which reflects in response to a question about tinnitus.  The appellant notes the difficulty hearing his grandchildren speak.  And record at 750 which is a disability benefits questionnaire for post-traumatic stress disorder in which the appellant said that he had a poor relationship with his wife.  Where from that do we get social isolation, marital discord at all, but also that it’s related to hearing loss?

Mr. Stolz: The last part, the citation to the post-traumatic stress- I’m trying to remember.  That may have been because we argued collective impact.  And so that’s off the table now because of the Johnson kind of amendment or rewrite of 3.321.  But the fact that the- all of those are not as strong as what was in Mr. King’s case.  But reasonably raised, for example using Mr. King’s case as an example because it’s recent and because that one was pretty obvious.  Because he had the dizziness, he had things that really fell under Doucet.  In all honesty, Mr. Morgan’s case is not as clean as that.  But it meets that low threshold that was described in Comer and Robertson and all of those cases on reasonably raised to at least discuss it.

Judge Meredith: How? How much do you have to read into this evidence?  So if we knock out record at 750 you’re left with a question about Tinnitus and then one record where he’s asked to turn the TV down.

Mr. Stolz: I don’t mean to knock out 750 because that is important to Thun step two because- and I don’t mean to just knock it out, because there is under the hearing loss- part of that.  Particular piece of the record that it does affect his occupation.  And so that also reasonably raises an extraschedular analysis.  You have to get to Thun step two —

Judge Meredith: Which we don’t unless the issue itself was reasonably raised in a Board in an obligation to discuss it.

Mr. Stolz: But it is lurking out there.  And if there’s enough to trigger the extraschedular analysis which we would say the Board’s hearing, in which the follow up questions weren’t really asked when she said the ten percent doesn’t cover me.  And he starts going down the road of some of the things that causes him problems with and the fact that you can read the record broadly and the Board may have been able to read the record broadly enough that there’s a safety concern in the marital discord.  It just never did, because it never got to step in its analysis.  The fact that we’re talking about it seems like it reasonably raised it.  Again it’s, I have to rely on Comer and those types of case as it sets a very, very low bar, your honor.

Judge Davis:  Mr. Stolz, doesn’t that stretch things just a tad- maybe more than a tad.  Safety- marital discord because he had to ask his wife to turn the TV up or down, and social isolation. I mean when you look at this record, his hearing loss all related to obviously the ability to not hear as well.  But rolling the window down, that’s something that people who don’t have hearing loss does from time to time.  I think this is a bit of a stretch to try to make the point that all of these should be factored in to the- that gets me back to the pool I was talking about.  How far down the road are we going on hearing loss?  Judge Bartley asked earlier, isn’t this really within the normal range of what happens with people who have hearing loss.  But the- and marital discord in my view is a real stretch.

Mr. Stolz:  It- Those are all factual questions.  And it may very well be a stretch to award an extraschedular evaluation when all is said and done.  But the analysis still has to be done by the adjudicator in the first instance.  And I would like to-  I know that I’m probably sounding a bit like a broken record- but the Board’s hearing, the Bryant problem in this case really leads down the road of the fact that none of this analysis was done where it should have been done.  And it should have been done by the Board because it did- the Board knew well enough that it needed to conduct some type of extraschedular analysis.  So something tipped them off.

Judge Davis:  As Judge Meredith says you don’t get there unless there’s an exceptional picture painted here.  And the Board said, that was not an exceptional picture.  As far as I remember the record.

Mr. Stolz: Well the Board just said we took into to account the evidence and it’s not exceptional so we’re not going to conduct an analysis.

Judge Allen: Not to put too fine a point at it, but isn’t it – it just seems to me that the discussion that we’re having now in some measure is a necessary outgrowth of the court’s decision in Doucet.  Because once the court included in the list of things that were effects or impacts or using those different words, that weren’t contemplated by the rating schedule, something like social isolation.  And you said twice in the opinion that this list was non-exhaustive, made that really clear.  I mean it seems- it reminds me a little bit of that old saying about batting away the camel.  That the reason you don’t let the camel’s nose under the tent is because you cannot stop them having a camel in your tent.  And it seems to me that once we have opened the door, while saying social isolation is something that is in contemplate and the Board has to talk about.  It just seems to me that that is the fundamental problem here.  Because once we do that, then whether or not rolling down a window, or having to turn up the TV- or when that causes distress is something- it seems to me is a natural outgrowth of Doucet’s majority opinion.  And so, I know you argued Doucet and so I know this is an awkward position to put you in, but should Doucet be overruled?

Mr. Stolz: No. No, your honor, I don’t believe it should be overruled.  Because those are helpful guide post.  There has to be something that has to guide the adjudicators on an extraschedular analysis.

Judge Toth: But does Doucet contain any limiting principle?  I mean, is there any limiting factor to the type of analysis that you’re advocating?

Mr. Stolz: The limiting factor would be if none of the- if really, Mr. Doucet had just had an audio metric hearing.  Submitted nothing else, had no hearing there was nothing that said that it affects his occupation.  Nothing in the record at all.  Like in Doucet, Doucet itself is limiting because the court in Doucet wrestled with what was in there.  There was not enough in there to have warranted an extraschedular referral.  And so, the court by Doucet explained in that situation, “No.  This was not Board error.”  And so Doucet by some terms is limiting.  But I would continue to say that as far as what analysis- sorry your honor.

Judge Davis: I just added five more minutes.

Mr. Stolz: Thank you.  But I would say that at least the analysis part should be done by the adjudicators in the first instance.  And it needs to- it’s not as onerous- I want to walk my argument through a little bit more, it’s not as onerous as maybe we’re making it sound.  Because all that needs to happen is that this Thun analysis should be done with an eye towards what the record contains.  And whether or not that fits under what they alluded to at page 16 in the Board’s decision.  Where it just said, “Nope. Only a mechanical application for hearing loss cases.”  The Board should have done a bit more and talked about the fact that he testified as to some symptoms and severity that were outside of the rating schedule.  And the fact that Thun step two- kind of walling off of Thun step two, is in my opinion, a bit unrealistic, it said that in Yancy.  If the court were going to overturn anything, I think that small part of Yancy that kind of said, “Look, you do step one and you just put blinders on -step one, step one, step one, step one.  Okay, there’s signs or symptoms that are outside and now we look to occupation.”  There is a hearing loss notation, that hearing loss affects his occupation and no one has wrestled with that yet.  And it’s not up- this court is not the right forum to wrestle with that ’cause it’s defining- it’s a factual analysis that should be done in the first instance by the Board which is why remand is important here.

Judge Bartley: Can I ask a question that is a variation of the one that Judge Allen asked?  That is, should we overrule Doucet to the extent that it included social isolation in the list of symptoms that should be- that could be contemplated in an extraschedular setting?  Because it- I mean- here I’m giving you a push in a certain direction as to the answer that I’m looking for. Dizziness, vertigo, ear pain- those are actual symptoms.  Social isolation, taken in itself- me being a somewhat of an introvert- that’s not necessarily a bad thing, social isolation.  You know I may prefer to just sit and read all day and not really go to a party.  So, being socially isolated, that’s not in itself any kind of disability whereas the vertigo, dizziness thing, there is a DC that covers that whenever people have vertigo.  So that those could be called either standalone symptoms or they could be actually secondary conditions.  Whereas social isolation is like amorphous — I don’t know how to interpret social isolation.  I mean, I guess that the prevailing attitude towards it is that it is a negative.  But I don’t know that that’s universally so, and it certainly in itself is not its own disability or symptom.  So, doesn’t it stand out somewhat as having different characteristics than the other things that were included in that parenthetical in Doucet.

Mr. Stolz: It’s different than the other things in the parenthetical.  But this is a judicial testing so – judicial test- it’s not just extraschedular.  Other courts create judicial test that they have to wrestle with from time to time.  Social isolation is a useful guide for us because, to your honors point, social isolation may not be a negative.  It may just be a person’s personality.  It may be totally fine as in reading a book.  And that’s fine.  But somebody needs to say that his hearing loss makes him go away for long periods of time because he doesn’t want to interact to people, he gets tired of telling people to say, “What?”  But it doesn’t affect his occupation and so there’s no extraschedular that you go to Thun step two and social isolation is a cause of many disability.  But the analysis can still be done.  It’s still —

Judge Shoelen: Going back to Judge Bartley’s question. Do you think there’s a difference between what a symptom is and what a functional effect or impact is? Is the functional impact going to be something that you’re going find in DSM, or something like that?  Or is it something squishier?

Mr. Stolz: Squishy.  It’s a little squishy.  Functional effects serve- and functional effects are talked about as Judge Bartley and I talked about at the beginning of the argument, are found in the case law and in the regulation telling the examiners what they need to do.  I think that the functional effects do fall under signs and symptoms but also severity which is kind of a second component of Thun step one.  And so, it’s not real clean but the functional effects help the adjudicator.

Judge Schoelen: So would social isolation be more of a functional effect or symptom?

Mr. Stolz: I think it’s more of a functional effect.  Usually, I would say it’s more of a functional effect, usually.  That’s my off the cuff kind of response to that.  But I could see a situation in which that social isolation manifest itself in some severity not contemplated by the diagnostic- maybe not vertigo a symptom, but some severity.

Judge Greenberg: Mr. Stolz, as far as I recall in the record, there is no indication of any kind of a hospitalization or an interference with work.  Is there a record slide that you can provide me?

Mr. Stolz: There is for the work but not the hospitalization.  I believe it’s record seven. I believe it’s record 750 discusses his- if I may, your honor.  There’s a notation that says that he is- I want to give you the exact pin point of it. There’s a notation under the hearing loss portion of the examination that says it affects his occupation. I believe is at 434.

Judge Greenberg: Record 434?

Mr. Stolz: Yes.  I believe so, your honor.  Yes, yes.  Sorry, your honor, it took me a while.  But record 434, right in the middle of the page- does the veteran’s hearing loss impact ordinary conditions of daily life including ability to work, check mark “Yes”.

Male Judge 2: Check mark, yes.  And that’s it?  And your position is this reasonably raises the interference with work part of extraschedular.

Mr. Stolz: Yes.

Judge Falvey: Mr. Stolz, that’s followed by the explanation that people have to talk loud for him to hear.

Mr. Stolz: Yes, your honor.

Judge Falvey: Okay.  That’s the evidence that you want to point to that this impacts his ability to work?

Mr. Stolz:  That it may impact his ability to work, such that the Thun analysis should have been done in a more robust manner by the adjudicators.

Judge Falvey: Regarding your claim that there’s a Bryant issue, was there- is there additional evidence that could have- would have been submitted?

Mr. Stolz: The answer- under Bryant, this would be going outside of the record and I- to answer your honor’s question, I don’t know specifically what Mr. Morgan would be able to submit.  I would be happy at the court’s order to talk about that.  But the prejudice under the Bryant analysis and the 3.103 analysis is that there were simply no follow up or explanation of how he could be getting a higher evaluation than ten percent.  Even though this claim regulation exists.  And that’s the problem.  There’s a duty to suggest evidence and to explain the law that the Board hearing officer in this case did not do.

Judge Falvey: Thank you.

Judge Bartley: Let me just go back to my question about Doucet and removing social isolation.  What was your answer to that in short?

Mr. Stolz: No. I know you were leading me to a ‘yes’ Judge Bartley, I know.  There is room- this is a judicial test.  And so, if it were removed- that happens, I would encourage the court not to remove it.  Because to a court justice that kind of squishy high-minded ideal that’s in the regulation, social isolation may be something in some veteran’s cases that could lead to severe signs or symptoms outside of the diagnostic criteria.  That’s why I would encourage the court not to.  I do recognize that my answer is ‘yes’ to your honor’s question of whether social isolation is different than the other symptoms that are discussed in Doucet.  In all fairness, it is different.  It is a harder concept.

Judge Bartley: To the question whether that the inclusion there has led us down a road of never ending- you know- it requiring the Board and the RO perhaps to look at complaints of, “I have to do this because I have hearing loss.  I have to do that because I have hearing loss.”  It causes strain, it causes stress.  Looking at aspects of the veteran’s life that, although 4.10 requires that those be discussed in an examination report, they’re not typically things- correct me if I’m wrong- that are generally served as the basis for an evaluation under the rating schedule.

Mr. Stolz: Yes, your honor.  That’s- I agree with your honor.  Under the rating schedule.

Judge Bartley: Yes.  Under the rating schedule.  I’m- I didn’t misspeak. Yes.

Mr. Stolz: Yes, I agree with your honor.

Judge Bartley: Okay.  And- but your view is that they should be included somehow in an extra- there should be an analysis of them.  Whenever they are mentioned or reasonably raised in the record- there should be an analysis of whether they require VA to refer for an extraschedular eval.

Mr. Stolz: Yes.  Because I believe Thun would control that scenario.  And Thun talks- Thun and its progeny, talk about those things- those functional effects may be being outside-

Judge Bartley: Did Thun actually- didn’t Thun just used symptoms in symptomatology?  Did it refer at all to functional effects?

Mr. Stolz: The case is that came after it talked about the severity.

Judge Bartley: Okay.

Mr. Stolz: Which-

Judge Bartley: Would you agree with me though that the inclusion of that term and functional effects like social isolation such as marital discord or disharmony in the family or traffic safety impacts from disability – would you agree with me that their inclusion seems to open a door to a never ending stream of- consider this, consider that aspects.  Aspects that have not generally even been included in an extraschedular evals?

Mr. Stolz: It opens the door, I would agree with your honor, that it opens the door.  I would respectfully disagree that it’s never ending.  And once the Board offer- the Board and the regional offices exist to help veterans flush out what their disability picture- to borrow the term from I think 4.1 and from 3.321- what the disability picture is.  And so, asking some follow up questions and taking the veteran’s overall condition into account doesn’t have to be that onerous.  It is more a work for the adjudicators to have to run through this extraschedular analysis.  But the regulation exists.

Judge Bartley: Right.  We’re trying to figure out what the regulation entails.  So under Doucet, if it were applied to- if the same motion of extraschedular evaluations were applied to physical disabilities, you could have a veteran arguing- could you not that some kind of musculoskeletal condition, let’s say knee or an ankle condition- require, you know, created a functional impairment of driving safety impact?  And that is fine with you?  That’s the way the extraschedular regulation was meant to be interpreted.

Mr. Stolz: Well, it would be done under step one and it may not go anywhere.  The analysis may not go anywhere because if it causes problems- Mr. Morgan happened to be a truck driver.  And so if there are effects on his ability to drive than that goes to Thun step two.  If what your honor is proposing is just that’s the effect but it doesn’t cause any effect on occupation, then that’s the end of the analysis.  And perhaps that’s where the door slam shut.  So that’s not necessarily never ending.  Because you do still have the second part of Thun.  And so if it doesn’t cause any effect on employment, there’s no reason to award an extraschedular evaluation or indeed a higher diagnostic criteria or a higher schedular. Because the whole point is to you know your honor to compensate for loss of occupational function.

Judge Davis: Counsel, your time has expired several times.

Mr. Stolz: Thank you, your honor.

Judge Davis: Thank you.

Judge Davis: Mr. Morris, you will have twenty-five additional minutes should you need it.

Mr. Morris: Thank you, your honors.  May it please the court.  Your honors, entitlement to an extraschedular evaluation is not a question that should come up in most or even many cases.  It’s not an alternative path to compensation, it’s not a theory of entitlement, it’s a last resort.  Inevitable stop cap that applies only in the rare instances where the system designed to rate disabilities is inadequate.  Your honors, when we’re looking at an extraschedular whether it’s for purposes of determining whether it’s raised or whether it’s warranted, we’re looking at several things.  First, your honors, we’re looking to determine whether the diagnostic criteria of the corresponding or the analogous diagnostic code fairly approximate the level of disability.  And to do that, we’re looking, your honors, to whether the disability is unusual or exceptional and if so, whether it’s so unusual and so exceptional that we can’t practically apply the regular schedule of standards.  And then your honor, we’re looking to determine whether this unusual or exception features of the disability is efficiently impact the veteran’s ability to work.  So we’re looking at things like marked interference with employment, and frequent periods of hospitalization.  And only then, your honor, do we get to the actual question which is whether the veteran’s schedule of evaluation is actually inadequate.  And we’re comparing then the average impairment and earning capacity caused by the veteran’s disability with the average impairment and earning capacity represented and reflected in the diagnostic code.

And your honor before I address the court’s questions, I’d like to identify five points of discussion that I believe go to the heart of the court’s question that are also critical to understanding and properly applying 3.321(b)(1), and any framework for extraschedular analysis.  And the first your honor, goes to the scope and the adequacy of the rating schedule because we can’t talk about extraschedular without first talking about the rating scheduler itself.  Second, your honor, is how the diagnostic criteria work.  And the third, your honor, is what makes a disability unusual or exceptional.  And the fourth, is what evidence – or type of evidence – is needed to show that the disability is unusual or exceptional.  And then finally, your honor, where does the burden of truth in all of this lie.

Your honors, I’d like to begin by noting that, again, disability compensation is based on average impairment and earning capacity.  Which looks not to the individual circumstances of a veteran but to the impairment to function and how that impairment would, on average, negatively impact earning capacity.  The rating schedule recognizes hundreds and hundreds of disabilities, and it is regularly revised, updated and expanded.  And as this court has recognized it is adequate to rate a disability in all but rare and exceptional cases.  By definition, most cases can’t be rare and exceptional.  As mathematically, it’s improbable that a disability won’t be adequately rated under the schedular.  And your honor, I believe that has to be the starting point to any discussion.  And it has to be the starting point to any discussion about extraschedular because any other view that turns the extraschedular into a regular consideration is clearly and plainly inconsistent with those principles and the regulation itself.

So, I then would like to begin with the diagnostic criteria.  Your honor, the diagnostic criteria of the diagnostic codes, they serve as a proxy to generalize average impairment and earning capacity.  And they do this with the diagnostic criteria are simply standardized variables.  They’re standardized variables chosen by the Secretary to approximate disability level.  They’re variables that allow inferences and generalizations to be drawn about the nature and severity of the disability.  And they may be- those variables may be the presence or absence of certain specified symptoms, they may be the results of objective tests or clinical tests or audio- audiology tests.  They may be different levels of severity of a certain specified symptom or any other metric that the Secretary has chosen as the best way to infer and make generalizations about disability level.  And because of that, your honor, the diagnostic criteria, the diagnostic codes are not meant to paint this all-encompassing picture of disabilities.  But listing every sign or symptom of that disability.  Because again your honor, these are approximate or these are variables that the Secretary has chosen and this is well reflected in many of the federal register publications that have come along with revisions made to the diagnostic code- up to including the hearing loss.  And there’s a reason that the Secretary has chosen audio metric tests, pure tone thresholds, and speech recognition tests.  Because those are tests that are universally recognized to provide accurate and insightful information about the level of a hearing loss disability.

Your honor, when counsel has discussed- and when this court has discussed these effects such as rolling down the window, turning up the television, having somebody repeat themselves- your honor, that is nothing more than evidence of the existence of a disability or it’s severity.  We know there is a disability.  And as to severity, the Secretary has chosen to measure and approximate this- to measure the severity of that disability by audio metric test results.  Yes, your honors, the Secretary could have chosen alternative variables such as how loud do you have to turn the television on, or how many times do people have to repeat themselves.  But you can see why that would be inaccurate.  Because it begs the questions, “How far is your TV?”, “How loud is your spouse?”  And that would affect the use of these variables to assess severity levels.  So again, simply pointing to these pieces of evidence does nothing.  And to suggest that they would overcome the results which by advocation of the Secretary’s chosen variables is simply inconsistent with the diagnostic codes but also intrudes into what this court has recognized as an area that this court does not have review over, which is precisely how the Secretary has chosen to measure what he- what variables he’s chosen.

Judge Schoelen: If I can interject?

Mr. Morris: Yes, your honor.

Judge Schoelen: Assuming what you say is accurate, how does that reconcile with the Secretary’s regulation 4.10 that tells doctors to assess a full description of the effects on the person’s ability to do ordinary activity, if all you care about the pure tone threshold levels in a lab test? Why do you ask a doctor to make this inquiry?

Mr. Morris: Your honor, there are several reasons.  One, we do want a full picture of the disability.  There are different —

Judge Schoelen: What are you going to do with that?

Mr. Morris: The different diagnostic codes use different metrics, your honor.  And some of those metrics may be certain indicators of functional impairment or the actual impairment to function with that particular body part.

Judge Schoelen: But that would be listed in the diagnostic code.  You would need to remind the doctor to do that separately.

Mr. Morris: But we wouldn’t necessarily have the information because there are diagnostic codes that – again, the variables range between again the presence absence of symptoms, up to including certain functional impairment specified by the diagnostic code, up to including other any, other variable whether they currently exist or whether conceivably could be used in the future to rate a disability.  So again to- getting a full picture of a disability, your honor, I don’t believe is inconsistent with the Secretary’s position but it also doesn’t make rating the disability- or doesn’t change the nature of the diagnostic codes.  Because again, your honor, this is reflected in the diagnostic codes themselves.  First, the mere fact that the diagnostic codes clearly do not all paint, or even attempt to paint pictures of the disability itself because they do use very different variables.  But again, also underlying the revisions made now- some of those have –

Judge Schoelen: I’m sorry, I still don’t understand what you believe the VA adjudicator is supposed to do with this information in a diagnostic code that has very objective criteria like hearing loss or range of motion.

Mr. Morris: Your honor, medical examiners are also told to capture things like other parts of history, social history, military history we talked zero relevance to the rating of the disability and very often have limited relevance to whether service connection will be granted.  There’s a lot of information that’s obtained and it’s better to obtain more information to determine whether it might be useful in the future than not to obtain it the first time.  Because again, sending a veteran back for another examination, if one doesn’t have the information that ultimately is useful would be both delaying the adjudication of the veteran’s claim- but it would also be wasteful of resources and money.  So I don’t believe your honor, that it is indicative of how we necessarily rate every disability- the fact that we may ask for certain effects.  What is critical though is understanding the impairment and function of the injured or diseased body parts, system or organ of the body.  That is ultimately-

Judge Allen: Maybe this is exactly Judge Schoelen’s question, so I’ll-

Judge Schoelen: And hopefully you’ll ask it better.

Judge Allen: Try.  I’m not optimistic in my ability- but Mr. Morris, so let’s try it from the back end, right?  Because I also don’t understand why one in the hearing loss context would ask for functional effects and your argument?  So let’s go to the other way to ask the question and say what would make a hearing loss disability exceptional, in your view under 3.321?  If it isn’t the functional effects the hearing examiner- or the examiner captures.

Mr. Morris: I need to qualify that question.  If the disability is a hearing loss disability, I don’t know that anything would necessarily make it unusual or exceptional.  Because we do have to remember that the audio —

Judge Allen: So then let me stop you.  Because it seems if that’s right, and maybe it’s right- I’m not to be right or wrong, but I hope so- okay.  But that would lead us to overrule a number of cases.  Like I mean, and it’s okay we’re on en banc hopefully we’re on en banc for a reason.  But that is entirely inconsistent with Doucet.  It’s entirely inconsistent with Marknet.  In fact, Andrews- no not Andrews – yes.  So is that what you’re asking for?  And that’s okay if you are but I want to make that really clear.

Mr. Morris: Yes, your honor.  I believe that there are a number of assumptions that this court has made starting with it’s earlier cases in veterans expanded those assumptions over time to a point where case laws no longer consistent with the underlying regulation.  But more so is inconsistent with the way that disabilities are evaluated under the rating schedule.  So I believe that there are aspects of many of these cases that this court should revisit and reconsider.  I don’t know if it requires a whole sale overruling —

Judge Allen: How could it not?  I’m just to try to figure out what the position is, right because if the Secretary’s position is- given the diagnostic code as it exists for hearing loss, there simply is no room for extraschedular analysis.

Mr. Morris: If I may finish the thought on that though.  I don’t believe that there’s no room for an extraschedular analysis.  I cannot think of a disability that we couldn’t potentially rate analogously under a different diagnostic code.  And taking even for example, the dizziness, or the loss of balance and assuming that it is part of some condition that also results in hearing loss, we do have other diagnostic codes.  A few including Meniere’s disease so perhaps that would be the analogous diagnostic code that we should use.  We shouldn’t simply be looking at a different diagnostic code and then correcting some error that existed in the application of the rating schedule.  And beyond that, the other matters that the court as noted in Doucet and assuming for a moment, you know, social isolation or these other effects the court also appears to have overlooked that again, those are not without the ability to rate.  Because if they were caused by the hearing loss disability, then that indicates the potential for a secondary disability.  And that’s the matter that needs to be considered.  And there are diagnostic codes- if it is part of a secondary disability, then we look to see what that disability is, and that disability could potentially be rated.

Alternatively, if it is- and again, and I will note just for the sake of noting it- hearing loss, the veteran in Doucet was service-connected for bilateral hearing loss.  Bilateral hearing loss simply does not cause dizziness.  Dizziness may be indicative of an underlying disability.  But again, the veteran in that case did not have it.  So again, I believe that the court simply made assumptions, medical assumptions that certain things could be related to this hearing loss.  If the problem was in the way that service connection was granted then that’s an issue that is not corrected through an extraschedular evaluation.  That’s an issue that needs to be addressed elsewhere.  Because perhaps if these things are all true and these things are all caused by it, then the veteran may have, he have a different disability.  But again, he had bilateral hearing loss and bilateral hearing loss is properly and adequately rated under the diagnostic code for measuring the loss of hearing acuity.

Judge Schoelen: I actually tend to agree with you that alot of things could be rated secondarily service connected, but that only addresses one part of the Thun test.  It doesn’t address the severity part.  And I know we were talking functional impairment for- but you drifted off into the subject.  So, how do you deal with- the only instances I have ever seen VA award extraschedular is in the severity context.  But so, would you say there are diagnostic codes that are- as I asked Mr. Stolz off the table for extraschedular because how do I know what roman numeral four means in the diagnostic code for hearing loss or what hypertension blood pressure level X should be resulting in can you run across the street or not?

Mr. Morris: With due respect what your honor is looking at is merely evidence of severity, again, that is simply evidence of severity that is going up and challenging the level of severity that was found by the Board given the audiometric test. That is not a matter for extraschedular consideration or any other consideration. If a veterans is I cannot hear anybody no matter how loud they are, yet audiometric tests reveal that he has a 10 percent evaluation. What that is, is a challenge to the variables to the standards that the Secretary has chosen to use to measure hearing loss.

Judge Schoelen: So, when does severity come into play?

Mr. Morris: I don’t believe that it typically would come in to play. If we’re looking at diagnostic codes that indicate— that indicate symptoms. Unless the diagnostic code is specifically limiting the severity of that symptom or grading the severity of that symptom saying mildly severe, moderately severe, nothing and then super extremely severe. Then–

Judge Schoelen: So you think that  Thun using severity as one of its touch stones, is wrong and should be overruled?

Mr. Morris: I do, I don’t think it’s wrong in every case, because again there are situations where a certain level of severity may not, you know, be contemplated, again, if the code simply refers to certain symptoms and they only present is mild and there’s — then, again, we do have an unusual disability picture like exhibiting severity that is beyond that and that is recognized as being unusual then perhaps severity would come into place so —

Judge Schoelen: So, I’m sorry, are you saying if it’s like a maxed out diagnostic code or–

Mr. Morris: I can’t actually think of a diagnostic code right now at the top of my head where would it apply. I’m not saying– I don’t think it applies typically and again typically where a diagnostic code uses a symptom as a metric, I mean, I believe even this court is recognized in Bankhead that it doesn’t differentiate between the levels of severity if a disability rating can’t go down because of variable listed is less severe than it follows that it also wouldn’t go up but the Secretary has chosen that variable in all levels of severity. So, I don’t believe that severity is typically going to be relevant to the Thun analysis which relevance to the Thun analysis is whether the disabling condition present with unusual or exceptional signs and symptoms and that’s the first part of the relevant analysis because if it does– we may no longer, it may increase the likelihood that we’re wrong to assume that the diagnostic have fairly approximated the disability level.

Judge Meredith: Could back you up this up?

Mr. Morris: Yes.

Judge Meredith: So, in your initial pleadings, you argued that the issue of extraschedular consideration was not reasonably raised or implicitly raised below so the Board had no obligation to consider. Is that still your position?

Mr. Morris: Yes, your honor. I will caveat it with the fact that obviously, we were operating under, you know, the current law and not in front of an en banc panel right now, so, I mean, there are at least certain points to clarify but, no, in this case, it is still our position that wasn’t raised it off. I believe that part of why the Board does address this is because I do think that case law has pushed the Board in to that corner of addressing it in every case unless it faces a remand to simply determine whether something hasn’t raised in the first instance because I do believe that it is a current trend in the case of to simply look at the record. Note, that there are signs, symptoms or any downstream or collateral effect of a disability and put the onus on the Board to explain why that is not indicative of an unusual or exceptional disability picture and I don’t believe that that’s correct, your honor. We believe that foremost downstream collateral effects are not relevant to whether a disability is unusual or exceptional. At most, most of these simply indicate individual circumstances. The very thing that we don’t consider when rating a disability at all but beyond that what we’re looking for again is the underlying condition. Is that unusual? Is that exceptional? Or is that something that the rating code, using the variables that are in it is going to fairly approximate that disability level up and what we need in this case is and what’s often missing where I do believe was lacking cases like Doucet and I believe in King– is even a connection. Even if we assume that we just limited to the signs and symptoms. These records were devoid of any evidence connecting those signs and symptoms due to the underlying condition let alone evidence, you are remotely suggesting that they may actually be unusual or exceptional so again, the onus was put on to the Board to effectively prov a negative. Board, prove why the Secretary system for rating disabilities doesn’t work. For prove why, these are not unusual or exceptional manifestations of a disability when there’s not even a single bit of evidence to suggest that they are part of that underlying condition or even might be unusual or exceptional and again is…

Judge Meredith: Can, I jump the note, if the issue wasn’t reasonably raised, the Board had no obligation to discuss extraschedular. So, would any error in their discussion of it be non-prejudicial?

Mr. Morris: Yes, but I also think that there have been certain like graded levels of reasonably raised because one can reasonably raise the idea of simply just, you had something dismissing it at risk of otherwise having inadequate R&B because its unclear whether the Board considered whether it was reasonably raised and I think that is one of the extremes but beyond that it’s not simply the issue of extraschedular, because even the components of it. There needs to be something that reasonably raises a prospect that signs or symptoms allegedly identified in the record, are actually a part of this underlying condition and I stress that because again, your honors, it is not a part of that underlying condition if it is a separate condition related to the underlying injury or disease then we have the prospect of separate ratings. If it is entirely unrelated to that underlying condition or, you know, then it’s not subject to compensation and if it is indicative of a separate disability caused by the original disability then again, we are not in the context of rating this disability. We are in the context of determining secondary service connection, so it’s critical, again, extraschedular is a last resort and in fact, your honors, I would submit to you that it’s not even the most beneficial way for a veteran to obtain compensation for any of these other disabilities and the more we lump into this extraschedular analysis, the less favorable it is to a veteran because if a veteran is experiencing a separate disability then secondary service connection would probably be more favorable to that veteran. If a veteran has a separate disability that resulted from the same underlying injury or condition then perhaps it’s better to have a separate rating because this is only the very first part of any analysis as to an extraschedular evaluation because your ultimate analysis again is simply based on, is the average impairment and earning capacity caused by the veterans disability greater than the average impairment and earning capacity reflected in the diagnostic code? And even within that, the veteran would still need to get pass that second hump, which is again sufficient impairment on that veterans’ ability to work. So, marked interference and frequent inability to work. So, putting all of this on the Board to explain why something doesn’t fit into the rating schedule– the rating of this particular disability at the exclusion of everything else that the rating schedule contemplates and allows for including assignment of separate ratings– secondary service connection, your honors, we don’t believe that that is– what this regulation intended, again, this regulation was meant to apply when nothing else does.

Judge Meredith: Can I get back to you… The specific evidence in this case as reasonably raised. So, as we’re talking about the appellant’s counsel, some of the evidence that they pointed to is reasonably raised is this issue actually on its face dealt with either PTSD or Tinnitus. Can you give us the Secretary’s position on whether evidence on its face relates to different disability can reasonably raise the issue of your extraschedular?

Mr. Morris: No, because I don’t think it would be unreasonable to not see it as not being reasonably raised.

Judge Meredith: Along with the issue of social isolation and marital discord. There was a discussion about the evidence of turning down the TV and not being able to hear the preacher. Is there anything in your view in the record that raises those as conditions or effects of hearing loss?

Mr. Morris: No, your honor, but again it’s still more fundamentally our position that it wouldn’t be relevant to an extraschedular analysis regardless. That if social isolation is not the result of any loss of function of the ear or the auditory system. It is not a part– it cannot be a part that condition. Now, the caveat to that would be unless there was medical evidence in the record that suggested it which I would submit to you is impossible but again I’m not suggesting that we would overcome evidence in the record if it did actually say that the impair– the rupture in the veterans eardrum has led to– and again not social isolation but perhaps that is indicative of some other symptom. But so, in any case, regardless of whether social isolation was raised and we don’t believe that the idea of social isolation was raised. Even if it was still enough be relevant to an extraschedular analysis and whether the idea of whether this– the diagnostic care of fairly approximate the veterans disability level. It wouldn’t undermine or–

Judge Schoelen: Can you clarify for me exactly what you would like the court to do? Not so much on this particular fact pattern but as you said we’re en banc, you seem to have some ideas that what we’ve done in the past isn’t accurate and we should do something different.

Mr. Morris: I believe, yes, I believe that what the court should is go back to the fundamental principles. Not only that it recognized, you know, in Thun but also in the external law, outside of Thun. That the court should recognize the proper framework, should start with whether the diagnostic criteria of a corresponding or analogous diagnostic code fairly approximate disability level, based on a recognition that the criteria are standardized variables. Not intended to paint the complete picture of the disability but to approximate disability level and within that we’d be looking– that’s where we’re looking to determine whether disability is unusual or exceptional and then if so, whether it’s so unusual, so exceptional that it renders the application of the standards inadequate. Then, your honors, whether it carve those unusual or exceptional features cause sufficient impairment of- of the inability to work so marked interference with employment of frequent periods of hospitalization, because at that point– that is when we might guess that maybe there is a chance that this veteran is inadequately rated and maybe justice will require the actual analysis, which is again the comparison of the average impairment and earning capacity caused by the veteran’s disability compared to what’s represented by the scheduler evaluation.

Judge Schoelen: Do we have to overrule any of our cases to do this?

Mr. Morris: I believe—

Judge Schoelen: Or proportions of–

Mr. Morris: I believe, that it would have to overrule at least portions of this court’s case law. I don’t believe though that it is inconsistent with again the principles at the court recognized in Thun. The idea that this is based on average is the idea that individual circumstances don’t matter but I also believe, your honor, that there are inconsistencies that currently exist in this extraschedular sphere which are inconsistent with other cases by this court and one those does have to do with the burden of proof because again, many of these cases rely on near assumptions and speculations that two things might be related. That one thing might be unusual but again, your honor, the burden of proof is always on a claimant to demonstrate his or her entitlement to the benefits and it is a record that is relevant in the case and not so of position and not assumptions and the court has recognized as much in plenty of other cases so I don’t– so while that you think that cases would need to be overruled, I don’t know that overruling would be inconsistent with the general framework that exists governing the rest of the law and, again, I– do you think that most fundamental in all of this, again, is the recognition of what diagnostic criteria are meant to do and the recognition that it should not be put onto the Board to prove a negative immersion, no evidence that indicates that the positive.

Judge Greenberg: Mr. Morris, let’s assume that we accept your position regarding the case law previous to Morgan and in attempting to construct a better approach of Argers prudence, we talked a little bit about King and Doucet and Martinet and all the cases that preceded in this one and indicate that while— we may not be inclined overruling may clarify to the direction of this assessment, this analysis and in doing so, we come up with a test that focuses more on basically the regulatory language that you’re really talking about and I’ll quote it. The governing norm in this exceptional cases is a finding by the director, that application of the regular schedulars standards is impractical because the disability is so exceptional or unusual. Do to such related factors as mark interference with employment or frequent periods of hospitalization. Let’s suppose that that becomes the focal point for this court’s analysis and moving forward pass the test that we adopt. Would that satisfy your concerns about this area?

Mr. Morris: To some extent, your honor, because I still believe that it– the ultimate analysis that these things may be governing yours but the ultimate analysis, again, is a finding that the average impairment in earning capacity caused by the veteran’s disability is less than what’s reflected this and the schedular evaluation because that– because the extraschedular evaluation is only signed to commensurate with the average impairment in earning capacity. So, I think that’s still is the overarching, governing, rule here and a part of it is just to get you to that point to determine whether, you know that scheduler evaluation first may be inadequate, again, is where we’re first looking to the diagnostic criteria. We’re looking to the diagnostic head, we’re looking to rating schedule. We’re looking to see what are those other ways that a veteran could be rated, whether there’s separate disabilities and these are issues that, again, your honor, this should be, you know, addressing the appropriate form. So, I do agree that— that looking at the governing norm should be a central focus but I don’t believe that the court should lose sight of the overarching, you know, overarching principles, the overarching rules, your honor, and I think that largely– in our view having point, again, I do think it’s critical to understand, you know, that the Secretary’s intention behind the diagnostic criteria and I think that most recently that was I think the divergence between what we believe even what Thun stood for and current case laws reflected most recently in King. We simply looked at what’s in the record and looked at what’s in the diagnostic, you know, criteria and I don’t believe that that would ever be compatible with the system, with what extraschedular is because its also not compatible with the rating schedule, yes.

Judge Bartley: So, this leads me to a question. You seem to– in response to one Judge Meredith’s questions earlier, you seem to have a different view of Thun step one. What– go over what you think like an optimum Thun step one would be assuming that prior to getting there– an adjudicator or the Board had already gone through the process of looking for a– whether secondary service connection could be granted or should be developed with regard to a particular symptom or set of symptoms. So, what if they’ve done that? Is it now you, you know, this is not susceptible to secondary service connection, so, they have some symptoms that the veteran experiences, that are not susceptible to secondary service connection but that are not covered under the schedule, what happens?

Mr. Morris: Well I think part of that would depend on why they’re not covered by secondary service connection. Obviously, if they’re not related then I think then that would remove us from everything. If it was because it simply didn’t rise to the level of the disability, I mean, I think that also or that it wasn’t actually any form of, you know, of disabling effect, we’ll call it, and I don’t know that it would be relevant either and, your honor, again like this extraschedular, we get here, I mean, really when nothing else works and to note or to emphasize even– we don’t compensate for symptoms, I mean that’s not the way the disability system works. We don’t simply just take every symptom and take each symptom individually. We’re compensating for the overall impairment in function and how that on average translates to impairment in earning capacity and as much as we’re not taking into account like individual’s circumstances like what must this veteran do because of XYZ of his disability, again, certain symptoms, they’re just– they’re assumed, they’re a part of the disability, you know, a disability picture itself which again is what the diagnostic code– the diagnostic criteria whether corresponding or analogous and, again, that’s something that I think is often overlooked is that this court has recognize that between corresponding analogous diagnostic codes, the rating schedule is typically going to be accurate that, again, we are on exceptional circumstances so I do think that, yes, if there is a sign or symptom. There would still need to be evidence that sign or symptom is a part of the underlying disability. It’s not simply by process of elimination that– well it’s not secondary but you will need the evidence and the only way that you actually eliminate the second possibility which is entirely unrelated would be with positive evidence relating it to the original underlying condition.

Judge Bartley: Yup, so let’s say you went through those steps, I think of a– whenever I think of a– and some judges here are sick of hearing me talk about this case but Artisan, it was a– it was an early extraschedular case where the veteran had tinea pedis or athlete’s foot and it was not only like blisters or whatever and sweaty feet, so it was like smelling so that people– every few hours he had to change his socks and smells would emanate from his cubicle so people didn’t want to work with him. Okay, so, let’s say you actually have a legitimate case like that where you’ve tried to get secondary, you know, secondary doesn’t work out, this cluster symptoms is not– it would be hard to fit in to another corresponding or analogous DC and it’s also related to the condition. There’s no question about any of that, what should VA do? How does 3.321 work as to that?

Mr Morris: Well then next steps though is still to determine whether– again, assuming all these facts that this is actually unusual or exceptional for this underlying foot condition to have all these symptoms, associated with it. Then next step is to look to see whether its still– it’s so unusual that it renders the schedule standards, the regular standards impractical and I note that —

Judge Bartley: And so, Thun says that to do that you compare it to the DC, what would you suggest, in the alternative if that’s what you suggest–? If you’re suggesting alternative?

Mr. Morris: Well, I believe the first thing that Thun said was that we determine whether the rating is actually inadequate simply by comparing these two things and, your honor, I don’t believe that’s logically tenable that it doesn’t demonstrate that something is inadequate. I do believe that there has to be not a direct comparison but, again, the theoretical underpaying to that which is kind of– are these criteria at a fair approximate of disability level but the next thing that we do look to, your honor, which I do believe is potentially overlooked in entire, again, is a rating schedule still like — can we still not apply this thing, the scheduler standards because I would note that one, the rating schedule is constantly updated and expanded and so the more its expanded, the more it’s going to cover and its not to say that Secretary couldn’t cover exceptional disabilities and, in fact, he has to one degree with exceptional patterns of hearing loss. So, we still do want to ensure that cant adequately, you know, that we can’t cover this and that is not covered, even if it’s unusual, and so if those conditions are met, then again, we’re not going to necessarily assume that the diagnostic criteria, the diagnostic code is fairly approximating disability level so then we do want to see whether to move on to the analysis and that’s where the things like mark interference in employment come to and that’s where you focus on the individual veteran because as time know to this is ultimately to accord justice in these exceptional cases. So, we do want to assure that this particular veteran is actually experiencing an impairment in order to move on to that final analysis which is by regulation undertaking, by the direction which is his comparison of average impairment to earning–

Mr. Greenberg: Mr. Morris, does the record at 434 make the point for this particular veteran about adhering employment? Take a moment and take a look at it.

Mr. Morris: Oh, no, no, sorry. I didn’t realize that. No, it does not, it doesn’t implicate anything regarding inability to work and, again, your honor, reflects if nothing more than the existence of what we know which is that there is a disability. So, you honors, before I sit I just want to make sure that I did actually address in many things that I came up here prepared to talk about and think I might have.

Judge Bartley: Let me just have you reiterate. You do or don’t find viable the first step of Thun?

Mr. Morris: I think the intent behind Thun is accurate. I think the idea of Thun which is to recognize those cases which are good candidates for, you know, further consideration, I think that’s viable. I do not agree with the way that it is framed or phrased specifically. I think that it can be clarified but I also believe that it should include what the Secretary has submitted should be these middle pieces to the puzzle and that it should not be viewed as this mere comparison, again, the idea between–

Judge Allen: How would you, I mean, just, I understand your conceptual discussions and I like conceptual discussion but somebody up here or maybe more than one of us is literally going to have to sit at a computer and type something. So, as I understand Judge Bartley’s question, if you don’t like the way that the first step in Thun is framed. How would you like that to be framed?

Mr. Morris: Do the diagnostic criteria provide a fair approximation of disability level? And that first question would be comprised of two sub-questions which is, “Does the disabling condition present with unusual or exceptional signs or symptoms and if so, are those signs or symptoms so unusual or so exceptional that application of the schedular standards impractical”, that would be the first step, if we’re making it analogous to what Thun indicated and, again, even clarifying that second step, again, we’re looking for that sufficient impairment in the veteran’s ability to work and that’s where marked interference employment comes from and frequent periods of hospitalization.

So, your honors, but in conclusion your honor, I do believe that this court should reconsider certain of the assumptions that it has and how those assumptions have a grown that the court should revert back to underlying regulation which is what it has been attempted to interpret but it should not simply look at the regulations but it should look at the entire rating system around it which is part four and what part four permits because every time the regulation is expanded and extraschedular is expanded were effectively narrowing the rating schedule because we’re pushing back against it saying that it is becoming more and more inadequate and I don’t believe that’s appropriate. So, your honors, I will leave you with simply this, that if we think about extraschedular evaluation if we take about rating schedule as simply a highway. It is a highway that everybody gets on. There’s an emergency service road, you don’t get on to that unless you actually have an emergency, so, no, it’s not parallel path, it’s not two pass that everybody gets to take to see what leads them the furthest. You stay on one and in emergency situations if that one doesn’t work then we may get you out to the other. So, thank you, your honors–

Judge Bartley: I think a runaway truck ramp would be a better variable.

Mr. Morris: I really do want to say this because I do know that we made a lot of points and I don’t how coherent I was with any of it. We would be happy to submit this particular, you know, position to you, you know, in writing if it would help, your honors, just say that we could actually pinpoint, the way that we believe that it should be done and if, your honors, would permit us or both parties, you know, seven days, we can  have something to you.

Judge Davis: Sounds like it could be helpful counsel, thank you.

Mr. Stolz: It seems– in listening to the Secretary’s presentation today that the Secretary’s almost getting to the award of an extraschedular rating before he’s getting what is owed by the adjudicator to determine what the overall disability picture is for a veteran. Mr. Morgan, Mr.  King, Mr. Petermann, did not ask the Secretary to prove a negative. That is not what happens in an extraschedular analysis under Thun. Under Thun, it is all an adjudication and my opposing counsel is exactly right. The appellant bears a burden, he bears the burden in a system that is supposed to be helpful to the veteran. When he got to the Board of Veterans Appeals and this particular case and a little bit to Judge Meredith point, could it have been more clearly raised by the record. The answer to that is “Yes”, could it have been more like King? But he does at page 344. The first time he is within a non-adversarial process with a lawyer form VA asking him questions says, it is, I’m paraphrasing a bit of page 344, is my contention that a 10% evaluation is not sufficient. There’s one of the two follow up questions to that and that is it. The point of this not to belabor the Bryant argument found in our pleadings, the point of this is to show that the Board of Veterans Appeals and regional offices are equipped to undertake the analysis laid out in Thun and explained in the subsequent case law.

Each individual case will present the adjudicators with different circumstances and some of them may be challenging, but that doesn’t mean that the good and well intentioned regulation 3.321 which is supposed to take an individual into account should be written out. The Secretary says that the rating schedule changes and that the rating schedule works most of the time, again, paraphrasing and I think I hope that I’m getting that right. We don’t disagree, Mr. Morgan doesn’t disagree that the rating schedule works. I’m a person to disagree that the rating schedule changes a lot, it does, but perhaps not a lot but it does the entire idea of extraschedular is that a human being that– that the human veteran presents each time with a unique picture. It doesn’t mean that an extraschedular evaluation needs to be awarded every time but the rating specialists and the Board hearing officers and the Veterans Law Judges and everybody else involved in this process should at least go down the road of whether or not there is something else we can do for this veteran when he is saying that the evaluation is not sufficient in my opinion. That is all Mr. Morgan is asking and the way to do that this court has articulated very well in Thun and it’s progeny and following step one and step two, together does get the adjudicator to a point where they can at least reasonably compensate a veteran for the loss of earning capacity and if the diagnostic code doesn’t quite cut it for that individual veteran, it gives VA the chance to make this veteran as whole as possible. If there are no further questions, thank your honors.

Judge Davis: Thank you, counsel. Thank you all. The case is submitted for consideration, the court will now come down and greet counsel and resume for our ceremonial session in 2 minutes.

Clerk of Court: All rise.