Legal Case Summary

The first target case of warning is number 147082. Did you break against McDonald's? Mr. Carpenter. May I please the court kind of sharpened her period on behalf of Mr. Anthony Dietrich. A rating criteria which does not explicitly consider the effects of a disability as related to occupational impairment is inadequate as a matter of law because a rating criteria that does not because that rating criteria does not contemplate the veteran's total disability picture. In this case, dealing specifically with hearing loss, hearing loss under the rating criteria is gauged by a pure tone examination and a particular criteria is utilized by the VA that relies exclusively on the results of that testing. Can I just ask you a question about your second issue, the collective effect of the Johnson issue? Have you argued before the board or had Mr. Dendrick argued before the board that that issue is still alive? Well, it's alive because of the remand. Because of the remand? So it was a remand for shooting some alive? Oh yeah. It's ongoing. Well, it's been deferred pending the outcome of the vaccine. Then the Johnson issue can be raised in that procedure. Oh yes, yes. As it relates to the back, but under Johnson now because of the remand. Combined, combined, and correct

. Yes. Is that that case at our court had not been decided at the time of the CDC to save in here? That's correct. On your view, the remand decision encompasses embraces considering Johnson. Whether it would be required to, yes, yes. Okay. That was, I wanted to get that cleared up. Sure. And I'm sure that government will have a tone view of whether that's the case or not, too. But I wanted to get that cleared up and then we can move back to the issue. But it is a point that when you're on your first issue, like your primary issue, that all of these ratings are supposed to reflect the loss of potential income? We believe that they do. When we believe that the government has or the BA has done what it was mandated by Congress to do, and that is created rating schedule that provides specific criteria for the average impairment. The problem with the way in which the BA has chosen to do it in the vast majority of its rating criteria is that it has explicitly excluded any consideration for occupational industrial impairment explicitly. Now in certain ones, ones that have been identified in the supplemental pleadings in this matter, the BA has in fact directly addressed those issues of how the disability picture affects the impairment of earnings in relationship to the varying markers or levels of disability for the purposes of assigning a rating. So is it your view that the mere fact that it's not mentioned means that it's explicitly excluded? Well, that it is explicitly omitted. It is the silence that renders the rating criteria for those that do not mention it

. Inadequate as a matter of law, under the criteria set out in 3.321b. Under the rating criteria of that regulation, that regulation contemplates that when a rating criteria is inadequate, then you will examine whether or not a market interference of employment has taken place based upon such things as... But no. ...true for hospitalizations, excuse me. Are you arguing that the BA is prohibited from considering employability concerns except in the poor categories where it's explicitly been left with? Oh, no. No. To the contrary, Your Honor, they are required to consider it. And we believe that they.

.. Are there many, many, many cases where extra-stridular consideration has been granted where the diagnostic code hasn't made any mention of employability problems? I would disagree with any suggestion that many cases have been done that way. That is part of the problem. My way into a database and I look to see how many instances there have been of extra-stridular consideration, there are more than more than two, right? It's not uncommon. I think that if that is better, it will be applied the benefit of 4.12, whether it is extra-stridular consideration. You know, Your Honor, to the contrary, I believe it is uncommon. And it is uncommon because of needing to meet the threshold that exists in the language of 3.321, which is that the rating criteria must be determined to be inadequate before you can go to the next step. And it is that inadequacy of the rating criteria that's an issue in this case. Below, Mr. Dietrich argued to the Veterans Court that the very silence of the rating code as it relates to social... It doesn't mean that for all veterans who are seeking benefits who are following, who is

... This is the problem of falling or diagnostic codes other than the forum mentioned. All will qualify for extra-stridular consideration. No. They would meet the first threshold. They would be able to then assert and have the VA and the board examine whether or not there was a market interference with employment or there was a frequent hospitalization which causes or requires the exceptional case to be considered for extra-stridular purposes. You said before that you thought that the VA did what Congress directed it to do. But if that's the case, Section 1155 specifically states that they will adopt a schedule of rating and then it says rating shall be based as far as practical upon the average impairments of earning capacity resulting from such injuries and civil occupations. So by definition, each rating starts with the assumption that what they're supposed to be doing is to consider the reduction in earning capacity. Yes, and that's the point that we have conceded that they in fact do that even in the rating schedule for hearings. But they do it in such a way that if you will, it is only evident to them why the average impairment of earnings takes place. In other words, it is an objective measure that has been made by the VA independently. What is contemplated by 3.321 is the personalized or individualized subjective disability from the service-connected disability or disabilities that needs to be measured beyond what's in the rating code

. And if the rating code provides no parameters for identifying what is the effect of the total disability by the veteran as a result of their service-connected condition, then there is no way for them to meet the initial criteria for entitlement to extra-schedular consideration. That's the threshold, that's the step that the veteran has to demonstrate that the rating criteria is inadequate. And then- You're saying that in every except these four, the rating criteria is always inadequate, even though the rating criteria by definition is supposed to encompass consideration of? Yes, for purposes of the first step only, it does not grant or make establish the entitlement to extra-schedular, but it requires the VA to consider whether there is or isn't market interference or whether there are frequent hospitalizations that require the assignment of an extra-schedular rating based upon the subjective or individualized disability picture for that particular veteran. In other words, what the VA's rating schedule deals with is the average impairment for the average person and how that type of disability should be evaluated in terms of the criteria or parameters that are outlined. And I understand that that being the case isn't it then the situation that the veteran is supposed to make a demonstration as to why the veteran falls outside the average? You say for example, if it's me with my hearing loss and I'm shown there, I'm faced with the diagnostic code that sets up this average norm and I say, gee, I'm more impaired than average. That's correct, Jarn. I come forward and I say my loss is particularly acute in the following respects. And I think the veteran, if I'm not mistaken, the veteran in this case did make that offer. And that offer was rejected. That's correct. And he had succeeded with that offer then he would have gone past your step one, correct? Yes. And then help me to understand what's missing. But was the veteran prejudiced here in any way? Well, he was. And an opportunity to demonstrate why the average doesn't fit. Right

. He made that offer and when this matter was appealed to the veterans court, the Mr. Dietrich explained to the veterans court that he was entitled to consideration that had been denied him. Those are laws determined whether or not the question of whether or not his case presents facts that take him past the average. Is that a factual question? Fields like this. That would be a factual question, Jarn. That would be something that would be up to the VA system through the sea if you see the deciding would be on the own, or authority. That would be correct, Jarn. In this case, however, the lower court said that silence was not such a showing. And the legal argument here, the absence of any reference to industrial impairment in the rating criteria for hearing. And I'm still turning it back to exactly how the VA operates under this system where the statute and the regulations say that all of the diagnostic codes have embedded in them are a consideration of the impact on employability, which is what it's all about. And so then the veteran has an opportunity, and every case to come in and say, I recognize that there's an average out here which makes sense. But I don't fit it. I'm my case is more extreme than the average. And they put forth the evidence about why the veteran feels the facts that came. And that evidence is considered

. And if the evidence has merit to be decided in the VA system, the veteran then proceeds on to the possibility of anguish or treasure consideration. I'm saying, what's wrong with that system? There's nothing wrong with that system. What's wrong in this case is what the veterans court did by finding that Mr. Dietrich was not entitled as a matter of law to extra-schedular consideration. The board said he was not. It is not based upon that factual criteria, but based upon whether or not the VA's rating schedule by omitting any reference explicitly to occupational impairment renders that regulation or rating code inadequately for purposes of triggering the consideration of extra-schedular. Isn't that really the point? I mean, you're saying that the code isn't adequate because there's nothing that the veteran could objectively measure again for knowing what the average impairment is and what it's not. And so because it's inadequate, we should just go past it. But are we allowed to question the adequacy of the underlying rating? We are not allowed to review the rating code. What you are allowed to review is the meaning of an adequate rating criteria under 3.321. That's the criteria here that the lower court said the silence of the crime of the code does not render it an adequate. That the veteran is supposed to offer something above that inadequacy or demonstrated in some other way other than silence. We're asking as a matter of law does the silence make it inadequate as a matter of law? Thank you. Mr

. G. D. Drogard used that the fact that the diagnostic code for hearing loss did not expressly include hearing occupational impairment that it somehow automatically triggered the exceptional case provision of section 3.321B1. However, the regulate both the statute and regulations plainly made clear that there are two considerations. Number one is the case extraordinary and does it present an extraordinary disability picture so that it renders the schedule of evaluation to be inadequate? Second, the veteran must also demonstrate a marked interference with employment or other related indisha such as frequent periods of hospitalization. Here, the veteran's court made a factual finding that none of Mr. D. Drogard's hearing loss incidents were extraordinary or unusual. What the problem is though, how does the veteran know what could be seen extraordinary or unusual? There's no measure of objective measure of what the norm is. So that's precisely why the veteran submits evidence. So the average impairment is reflected in the diagnostic codes, whether it be through consideration directly of occupational impairment, which is only reflected in for the diagnostic codes. There's also a separate consideration such as limitations in movement or sensory organs or a number of incapacitating episodes. These measures reflect how it indirectly affects the veteran's ability to work, but these all the diagnostic codes in one way or another reflect the average impairment in earning capacity. So it's the veteran submits additional evidence demonstrating that he has marked an interference with employment or other such evidence

. The veteran's, the board specifically considers that evidence and makes a determination whether it rises to the level of an extraordinary case. Section 3.321B1 is a part of the argument here is you keep talking about average and extraordinary and you say types of evidence, but we're not understanding what is average. If you say to me, I've got approved that I'm better than the next person at someone at something, but I don't know what the next person's capability are. How can I... Well, the average impairment is measured by the percentage of violations. They have specific descriptions discussing, for example, for diabetes or for hearing loss, about the hearing loss, which is that issue in this case. They measure average impairment through pure tone, pure tone decibels and speech discrimination. And that's an objective measure. They have a hearing test. And depending on how you score in the hearing test, the audiologist can say you are failing to identify this percentage of words. And I have hearing measurements, I know it works. And so they say, well, if you are the way the code is set up is that if you have, if you fall this rate on the test, they say you're missing about this percentage of what you're hearing

. And then that correlates into the workplace of this amount of inability to do your work. Yes, absolutely. So... A better relationship is keyed in through the test estimate. Right. And so even though for hearing loss, it's specifically measured through this objective, automatic testing results, the VA wrote the rating schedule in a way where the percentage ratings would reflect the veteran's impact on his earning capacity. But to the extent to that Mr. Deedrick is attempting to challenge the way the VA has somehow written the code to reflect the average impairment in earning capacity. It is 4.8. 4.8. So to the extent that Mr. Deedrick is challenging the manner in which the VA has written the code to provide an objective measure of average impairment in earning capacity. This court recently held in Wingard that the veteran's court and this court, they do not have such a restriction to review the way the manner in which the code has been written. What's the maximum disability that you could have under here in 100 percent? Yes, 100 percent. Mr. Deedrick was rated at 10 percent only because the result of his automatic test. Just to help him with the way the 10 percent what is there at 20, 30, 40? Yes, all the way to 100. I noticed those levels are teed back into the test for exactly how much you are failing in here. Right. Judgment has been made by someone that if you're missing this amount, you're about 10 percent of the radiation that can work place value and all the way to it if you're totally dead if it's 100 percent. Right. Here Mr. Deedrick, Mr. Deedrick's four automatic testing results resulted in the application of a 10 percent disability rating. He doesn't challenge that he has been titled to higher percentage rating fully through 4.85 rather he implicates this extra scheduler consideration through 3

. Deedrick is challenging the manner in which the VA has written the code to provide an objective measure of average impairment in earning capacity. This court recently held in Wingard that the veteran's court and this court, they do not have such a restriction to review the way the manner in which the code has been written. What's the maximum disability that you could have under here in 100 percent? Yes, 100 percent. Mr. Deedrick was rated at 10 percent only because the result of his automatic test. Just to help him with the way the 10 percent what is there at 20, 30, 40? Yes, all the way to 100. I noticed those levels are teed back into the test for exactly how much you are failing in here. Right. Judgment has been made by someone that if you're missing this amount, you're about 10 percent of the radiation that can work place value and all the way to it if you're totally dead if it's 100 percent. Right. Here Mr. Deedrick, Mr. Deedrick's four automatic testing results resulted in the application of a 10 percent disability rating. He doesn't challenge that he has been titled to higher percentage rating fully through 4.85 rather he implicates this extra scheduler consideration through 3.321 but that is reserved for exceptional cases where the scheduler evaluations are found to be inadequate. That's the practical fact of what's happening here. We talked a little earlier about what happened in this case. Assume that we were the real Mr. Carvinger favor to say that there is this threshold place and what's the impact? It sounds to me as if nothing would change from what happened in this particular case. That we would say well the veteran gets a chance to come in or and make his case. Cor is Mr. Carvinger arguing that the entire schedule has to be found out and all of the diagnostic goes other than the four that we know about all have to be rewritten to place in them some specific criteria that is the equivalent of what is now there implicitly through the testing device. What do you think is going to happen if Mr. Carvinger's few prevails here? Well certainly not the latter option because this court held in Wingard that this court doesn't have jurisdiction to review the manner in which the VA has accounted for a disability. We're not supposed to be telling the VA how to write these codes. That's right. I'm just come back and tell me what what does the VA going to do if we accept Mr. Carvinger's legal? He write it up in an opinion and then I guess the VA remains in the case back. What happens? Well I don't know if you accept Mr

.321 but that is reserved for exceptional cases where the scheduler evaluations are found to be inadequate. That's the practical fact of what's happening here. We talked a little earlier about what happened in this case. Assume that we were the real Mr. Carvinger favor to say that there is this threshold place and what's the impact? It sounds to me as if nothing would change from what happened in this particular case. That we would say well the veteran gets a chance to come in or and make his case. Cor is Mr. Carvinger arguing that the entire schedule has to be found out and all of the diagnostic goes other than the four that we know about all have to be rewritten to place in them some specific criteria that is the equivalent of what is now there implicitly through the testing device. What do you think is going to happen if Mr. Carvinger's few prevails here? Well certainly not the latter option because this court held in Wingard that this court doesn't have jurisdiction to review the manner in which the VA has accounted for a disability. We're not supposed to be telling the VA how to write these codes. That's right. I'm just come back and tell me what what does the VA going to do if we accept Mr. Carvinger's legal? He write it up in an opinion and then I guess the VA remains in the case back. What happens? Well I don't know if you accept Mr. Carvinger's interpretation which is that that occupational impairment is only inherently considered for the I guess the four specific diagnostic codes that mention it. Then I guess the VA would be required under all other under its consideration of all the other many many disabilities to I guess consider that any time a veteran has submitted some evidence of economic impairment that he has satisfied the threshold inquiry as this court set forth and signed. But the threshold according to Mr. Carvinger only gets his claim on the early gottener which is an opportunity to present evidence that he falls outside of this norm whatever however we define the norm. I can't get my hands around what benefit there is to Mr. Carvinger's client in this case if we were to ruin his paper. Right I mean he's already submitted. I do also understand what the VA is supposed to do. So he's already submitted all the evidence of occupational impact that his hearing loss had on his employment. The veteran's court has already considered all of this evidence which is basically that he has a difficulty with conversations that he can no longer work as a heavy equipment operator that he has to work in complete independence as a carpenter. The veteran the board of veteran's court already considered all of this evidence and found it made a specific special finding that it didn't amount to an extraordinary case that required extra-schedular application of extra-schedular consideration. But I think with Judge Clever just pointed it could make that they could reset same conclusion even at step two if we found that when the rating doesn't expressly mention the employment activity or employability that if we found that as a matter of law they passed the threshold they still reach the same conclusion in this case don't they? Yes why is it a big deal I mean that can still have to preserve the same evidence and the VA still gets to consider the same evidence for purposes of reaching the same conclusion. Right so I'm sorry can you please I mean I sometimes have trouble in these cases understanding what it has to do and what impact it will be on the system if we do it plus I'm always concerned to know what will be the impact on the person that's in front of us the veteran. Frequently the veteran will get another hearing something will happen and there's an possible chance of the veteran will prevail on its claim. But it seemed to me that likely wasn't going to happen here

. Carvinger's interpretation which is that that occupational impairment is only inherently considered for the I guess the four specific diagnostic codes that mention it. Then I guess the VA would be required under all other under its consideration of all the other many many disabilities to I guess consider that any time a veteran has submitted some evidence of economic impairment that he has satisfied the threshold inquiry as this court set forth and signed. But the threshold according to Mr. Carvinger only gets his claim on the early gottener which is an opportunity to present evidence that he falls outside of this norm whatever however we define the norm. I can't get my hands around what benefit there is to Mr. Carvinger's client in this case if we were to ruin his paper. Right I mean he's already submitted. I do also understand what the VA is supposed to do. So he's already submitted all the evidence of occupational impact that his hearing loss had on his employment. The veteran's court has already considered all of this evidence which is basically that he has a difficulty with conversations that he can no longer work as a heavy equipment operator that he has to work in complete independence as a carpenter. The veteran the board of veteran's court already considered all of this evidence and found it made a specific special finding that it didn't amount to an extraordinary case that required extra-schedular application of extra-schedular consideration. But I think with Judge Clever just pointed it could make that they could reset same conclusion even at step two if we found that when the rating doesn't expressly mention the employment activity or employability that if we found that as a matter of law they passed the threshold they still reach the same conclusion in this case don't they? Yes why is it a big deal I mean that can still have to preserve the same evidence and the VA still gets to consider the same evidence for purposes of reaching the same conclusion. Right so I'm sorry can you please I mean I sometimes have trouble in these cases understanding what it has to do and what impact it will be on the system if we do it plus I'm always concerned to know what will be the impact on the person that's in front of us the veteran. Frequently the veteran will get another hearing something will happen and there's an possible chance of the veteran will prevail on its claim. But it seemed to me that likely wasn't going to happen here. That's right you're on edge that board of very shorter thoroughly communicated the evidence. And Mr. Harper has been very careful which he is using words very carefully and he's been pointing out that this particular diagnostic code that we're talking about for hearing loss doesn't explicitly take into consideration employability concerns. He is the word explicitly sublimed. And so what I would expect the government to try and argue is that that may be the case which it is admittedly in fact there are only four codes out of hundreds of codes that explicitly prefer to employability. But this one which is what's in front of us implicitly take into consideration those things Mr. Carbuner says is absolutely right and it does it through the interrelationship between the kind of test that's being used to ascertain hearing loss and a judgment that then may be on the VA which is to be hasten they can not ours or yours as to when you what level of impairment will have corresponding effect on employability. That's that's right you're on that that's a position. Before you're done can I ask you about the junk initiative? You agree that it's still alive and well? Yes. Okay. Before the board board will have an opportunity to conduct and combine the facts analysis. And you've already done the Williams we don't have it that's not a judgment for us on that issue and Mr. Carbuner's not in he didn't respond in his recovery so I assume there's agreement that issue is moving to the appeal. Well to be clear to make sure that I understand the government's position this veteran says that because of the particular occupation which he was pursuing in construction there were special circumstances and what is the government view if you can summarize it quickly as to whether special circumstances would be considered. As to extra scheduler consideration

. That's right you're on edge that board of very shorter thoroughly communicated the evidence. And Mr. Harper has been very careful which he is using words very carefully and he's been pointing out that this particular diagnostic code that we're talking about for hearing loss doesn't explicitly take into consideration employability concerns. He is the word explicitly sublimed. And so what I would expect the government to try and argue is that that may be the case which it is admittedly in fact there are only four codes out of hundreds of codes that explicitly prefer to employability. But this one which is what's in front of us implicitly take into consideration those things Mr. Carbuner says is absolutely right and it does it through the interrelationship between the kind of test that's being used to ascertain hearing loss and a judgment that then may be on the VA which is to be hasten they can not ours or yours as to when you what level of impairment will have corresponding effect on employability. That's that's right you're on that that's a position. Before you're done can I ask you about the junk initiative? You agree that it's still alive and well? Yes. Okay. Before the board board will have an opportunity to conduct and combine the facts analysis. And you've already done the Williams we don't have it that's not a judgment for us on that issue and Mr. Carbuner's not in he didn't respond in his recovery so I assume there's agreement that issue is moving to the appeal. Well to be clear to make sure that I understand the government's position this veteran says that because of the particular occupation which he was pursuing in construction there were special circumstances and what is the government view if you can summarize it quickly as to whether special circumstances would be considered. As to extra scheduler consideration. For instance the VA General Counsel opinion that Mr. Mr. Hedrick's site and his brief present one example in which extra scheduler consideration will be applied which is if the schedule and we referenced it and put note five of our brief. If the scheduler ratings for muscular skeletal disability are based solely on the range of motion but the evidence indicates that the claimant's disability impairs earning capacity by frequent hospitalization or because medication required for that disability in our fears with employment and it may be necessary to address section 3.2.1. So you already said that this should be considered? In that circumstances it may be necessary to address section 3.321 so if I don't know I don't have a relapse but I don't know if medication was necessary but if Mr. Hedrick were taking certain medications that affected his ability to work then it may be necessary that the VA refer to for a schedule or consideration. Okay thank you Mr. Hedrick. Mr. Clark-Druck, I believe I'd either misspoke or you misunderstood what I said in response to your question. In the context of this regulation the threshold question has to be answered in the affirmative and the threshold question is whether or not the rating schedule is inadequate. In this case the board found that the rating schedule was adequate

. For instance the VA General Counsel opinion that Mr. Mr. Hedrick's site and his brief present one example in which extra scheduler consideration will be applied which is if the schedule and we referenced it and put note five of our brief. If the scheduler ratings for muscular skeletal disability are based solely on the range of motion but the evidence indicates that the claimant's disability impairs earning capacity by frequent hospitalization or because medication required for that disability in our fears with employment and it may be necessary to address section 3.2.1. So you already said that this should be considered? In that circumstances it may be necessary to address section 3.321 so if I don't know I don't have a relapse but I don't know if medication was necessary but if Mr. Hedrick were taking certain medications that affected his ability to work then it may be necessary that the VA refer to for a schedule or consideration. Okay thank you Mr. Hedrick. Mr. Clark-Druck, I believe I'd either misspoke or you misunderstood what I said in response to your question. In the context of this regulation the threshold question has to be answered in the affirmative and the threshold question is whether or not the rating schedule is inadequate. In this case the board found that the rating schedule was adequate. The court below affirmed that the rating schedule was inadequate. What's at issue here? Because of the silence of the diagnosis because it does not explicitly correct. That's right and therefore the rating schedule does not describe the total disability picture that a veteran would have other than in terms of the results of the testing. In other words all you get from this rating criteria is the results of testing. So you know that when you go in and look and see how you scored on the test you know whether you're somewhere between zero percent and 100 percent working. That's correct. Based on judgments made by audiologists, health experts and the whole rating people that make those kind of judgments should happen in medicine all the time. And you asked the government whether or not there would be a difference if the position asserted by Mr. Dietrich was adopted and there would be a difference because then as a matter of law the finding of the- So Mr. Dietrich should be able to come in and say the science that went into determining that with my degree of hearing laws I'm 10 percent impaired for social and employment at my ability. That's wrong. No. What Mr. Dietrich would say is that the rating schedule only relies upon that science and does not rely upon any other description of what renders a person- What's some of that other information that has missed it that's probably overlooked a long time. What should be in- It's not a question of whether the measurement is accurate but whether or not the measurement reflects how a disability impacts an individual's earning capacity

. The court below affirmed that the rating schedule was inadequate. What's at issue here? Because of the silence of the diagnosis because it does not explicitly correct. That's right and therefore the rating schedule does not describe the total disability picture that a veteran would have other than in terms of the results of the testing. In other words all you get from this rating criteria is the results of testing. So you know that when you go in and look and see how you scored on the test you know whether you're somewhere between zero percent and 100 percent working. That's correct. Based on judgments made by audiologists, health experts and the whole rating people that make those kind of judgments should happen in medicine all the time. And you asked the government whether or not there would be a difference if the position asserted by Mr. Dietrich was adopted and there would be a difference because then as a matter of law the finding of the- So Mr. Dietrich should be able to come in and say the science that went into determining that with my degree of hearing laws I'm 10 percent impaired for social and employment at my ability. That's wrong. No. What Mr. Dietrich would say is that the rating schedule only relies upon that science and does not rely upon any other description of what renders a person- What's some of that other information that has missed it that's probably overlooked a long time. What should be in- It's not a question of whether the measurement is accurate but whether or not the measurement reflects how a disability impacts an individual's earning capacity. What is determined in the rating schedule is how it impacts the average individual. You're saying that averages are in progress along? No, I am not. I am saying that averages are the criteria? No, you're on. After the average is the expectation from Congress for the rating schedule. Congress did not write 3.321b. The VA wrote that in order to provide for when the schedule isn't adequate. The question of law here is what makes the schedule inadequate and what makes the schedule inadequate? Why is your client prohibited from showing the inadequacy of the schedule? To say, my particular hearing loss, I realized I was tested and I felt with this particular level that I'm taking some drugs, I'm taking some other things that the audiologist didn't know about that affect me and my ability to work in my home life. Because those issues don't go to the adequacy of the rating schedule, those issues go to whether or not there is or isn't a market interference in its employment or he has frequent hospitalizations. Those are the triggering events that allow for extra schedule. Earlier, the problem with the rating schedule was it didn't take those considerations particular to the individual and the consideration. That's correct. But my understanding is that the veteran always has an opportunity to present the circumstances a few years to the individual to say, I'm different. I have these problems. With respect to your honor, he has the opportunity to present that, but those considerations are not considered until such time as there is a determination that the rating criteria is inadequate

. What is determined in the rating schedule is how it impacts the average individual. You're saying that averages are in progress along? No, I am not. I am saying that averages are the criteria? No, you're on. After the average is the expectation from Congress for the rating schedule. Congress did not write 3.321b. The VA wrote that in order to provide for when the schedule isn't adequate. The question of law here is what makes the schedule inadequate and what makes the schedule inadequate? Why is your client prohibited from showing the inadequacy of the schedule? To say, my particular hearing loss, I realized I was tested and I felt with this particular level that I'm taking some drugs, I'm taking some other things that the audiologist didn't know about that affect me and my ability to work in my home life. Because those issues don't go to the adequacy of the rating schedule, those issues go to whether or not there is or isn't a market interference in its employment or he has frequent hospitalizations. Those are the triggering events that allow for extra schedule. Earlier, the problem with the rating schedule was it didn't take those considerations particular to the individual and the consideration. That's correct. But my understanding is that the veteran always has an opportunity to present the circumstances a few years to the individual to say, I'm different. I have these problems. With respect to your honor, he has the opportunity to present that, but those considerations are not considered until such time as there is a determination that the rating criteria is inadequate. How was it really if we ruled in your favor on the point of law, which is appropriate? How would that benefit your client on the remanage given the facts that are already in this case? It would benefit Mr. Dietrich in two ways. First, it would benefit him in relationship to what the appropriate rating should be for his hearing laws. Should the rating be something higher than 10 percent? Is that already mentioned, Judge? No, it has not. What has only been... What additional evidence for he foot can the record on the remanage? It's not a question of what additional evidence he would put in your honor. That evidence has not been considered as it relates to whether or not this is extraordinary circumstances. They have said that it is not an exceptional case. The words of the BBN, the BBC say yes, that's exactly what they consider. That he doesn't present facts that qualify for an extraordinary circumstance. That's the second prong of this regulation. Under thumb, this court affirmed the lower court's interpretation and the VA's interpretation of this regulation that said that you have to meet the threshold requirement of establishing that the rating criteria is inadequate. That is the impediment to consideration of these particulars

. How was it really if we ruled in your favor on the point of law, which is appropriate? How would that benefit your client on the remanage given the facts that are already in this case? It would benefit Mr. Dietrich in two ways. First, it would benefit him in relationship to what the appropriate rating should be for his hearing laws. Should the rating be something higher than 10 percent? Is that already mentioned, Judge? No, it has not. What has only been... What additional evidence for he foot can the record on the remanage? It's not a question of what additional evidence he would put in your honor. That evidence has not been considered as it relates to whether or not this is extraordinary circumstances. They have said that it is not an exceptional case. The words of the BBN, the BBC say yes, that's exactly what they consider. That he doesn't present facts that qualify for an extraordinary circumstance. That's the second prong of this regulation. Under thumb, this court affirmed the lower court's interpretation and the VA's interpretation of this regulation that said that you have to meet the threshold requirement of establishing that the rating criteria is inadequate. That is the impediment to consideration of these particulars. And isn't this essentially the evidence that was showed that the rating criteria is inadequate, the same evidence that you'd look at that here if there's a marked impairment? No, you're not. In this case, what was argued below is that the silence of this rating code for hearing laws is per se evidence of inadequacy as a matter of law. Well, the four codes that you point to where there are explicit references. So we're not long ago with implicit consideration, we're talking about explicit considerations. They still do not provide the measurement, the detailed measurement against which you say your client could address his evidence. In other words, why wouldn't those codes, even where they expressly say that you're supposed to consider employability and impact on employability? Why wouldn't those be equally inadequate in your view? You're under the, as I mentioned, this court affirmed in thumb the interpretation offered by the VA of their own regulation and said that threshold consideration is that there must be a showing that the rating schedule is inadequate. If you don't show that the rating schedule is inadequate, you can't get to extra-schedular consideration. This is about whether or not as a matter of law when the VA made the choice to write more than 90 percent of its rating codes without the explicit reference to industrial impairment. Does that make those rating codes meet the threshold under 3.321? Thank you very much, John.

The first target case of warning is number 147082. Did you break against McDonald's? Mr. Carpenter. May I please the court kind of sharpened her period on behalf of Mr. Anthony Dietrich. A rating criteria which does not explicitly consider the effects of a disability as related to occupational impairment is inadequate as a matter of law because a rating criteria that does not because that rating criteria does not contemplate the veteran's total disability picture. In this case, dealing specifically with hearing loss, hearing loss under the rating criteria is gauged by a pure tone examination and a particular criteria is utilized by the VA that relies exclusively on the results of that testing. Can I just ask you a question about your second issue, the collective effect of the Johnson issue? Have you argued before the board or had Mr. Dendrick argued before the board that that issue is still alive? Well, it's alive because of the remand. Because of the remand? So it was a remand for shooting some alive? Oh yeah. It's ongoing. Well, it's been deferred pending the outcome of the vaccine. Then the Johnson issue can be raised in that procedure. Oh yes, yes. As it relates to the back, but under Johnson now because of the remand. Combined, combined, and correct. Yes. Is that that case at our court had not been decided at the time of the CDC to save in here? That's correct. On your view, the remand decision encompasses embraces considering Johnson. Whether it would be required to, yes, yes. Okay. That was, I wanted to get that cleared up. Sure. And I'm sure that government will have a tone view of whether that's the case or not, too. But I wanted to get that cleared up and then we can move back to the issue. But it is a point that when you're on your first issue, like your primary issue, that all of these ratings are supposed to reflect the loss of potential income? We believe that they do. When we believe that the government has or the BA has done what it was mandated by Congress to do, and that is created rating schedule that provides specific criteria for the average impairment. The problem with the way in which the BA has chosen to do it in the vast majority of its rating criteria is that it has explicitly excluded any consideration for occupational industrial impairment explicitly. Now in certain ones, ones that have been identified in the supplemental pleadings in this matter, the BA has in fact directly addressed those issues of how the disability picture affects the impairment of earnings in relationship to the varying markers or levels of disability for the purposes of assigning a rating. So is it your view that the mere fact that it's not mentioned means that it's explicitly excluded? Well, that it is explicitly omitted. It is the silence that renders the rating criteria for those that do not mention it. Inadequate as a matter of law, under the criteria set out in 3.321b. Under the rating criteria of that regulation, that regulation contemplates that when a rating criteria is inadequate, then you will examine whether or not a market interference of employment has taken place based upon such things as... But no. ...true for hospitalizations, excuse me. Are you arguing that the BA is prohibited from considering employability concerns except in the poor categories where it's explicitly been left with? Oh, no. No. To the contrary, Your Honor, they are required to consider it. And we believe that they... Are there many, many, many cases where extra-stridular consideration has been granted where the diagnostic code hasn't made any mention of employability problems? I would disagree with any suggestion that many cases have been done that way. That is part of the problem. My way into a database and I look to see how many instances there have been of extra-stridular consideration, there are more than more than two, right? It's not uncommon. I think that if that is better, it will be applied the benefit of 4.12, whether it is extra-stridular consideration. You know, Your Honor, to the contrary, I believe it is uncommon. And it is uncommon because of needing to meet the threshold that exists in the language of 3.321, which is that the rating criteria must be determined to be inadequate before you can go to the next step. And it is that inadequacy of the rating criteria that's an issue in this case. Below, Mr. Dietrich argued to the Veterans Court that the very silence of the rating code as it relates to social... It doesn't mean that for all veterans who are seeking benefits who are following, who is... This is the problem of falling or diagnostic codes other than the forum mentioned. All will qualify for extra-stridular consideration. No. They would meet the first threshold. They would be able to then assert and have the VA and the board examine whether or not there was a market interference with employment or there was a frequent hospitalization which causes or requires the exceptional case to be considered for extra-stridular purposes. You said before that you thought that the VA did what Congress directed it to do. But if that's the case, Section 1155 specifically states that they will adopt a schedule of rating and then it says rating shall be based as far as practical upon the average impairments of earning capacity resulting from such injuries and civil occupations. So by definition, each rating starts with the assumption that what they're supposed to be doing is to consider the reduction in earning capacity. Yes, and that's the point that we have conceded that they in fact do that even in the rating schedule for hearings. But they do it in such a way that if you will, it is only evident to them why the average impairment of earnings takes place. In other words, it is an objective measure that has been made by the VA independently. What is contemplated by 3.321 is the personalized or individualized subjective disability from the service-connected disability or disabilities that needs to be measured beyond what's in the rating code. And if the rating code provides no parameters for identifying what is the effect of the total disability by the veteran as a result of their service-connected condition, then there is no way for them to meet the initial criteria for entitlement to extra-schedular consideration. That's the threshold, that's the step that the veteran has to demonstrate that the rating criteria is inadequate. And then- You're saying that in every except these four, the rating criteria is always inadequate, even though the rating criteria by definition is supposed to encompass consideration of? Yes, for purposes of the first step only, it does not grant or make establish the entitlement to extra-schedular, but it requires the VA to consider whether there is or isn't market interference or whether there are frequent hospitalizations that require the assignment of an extra-schedular rating based upon the subjective or individualized disability picture for that particular veteran. In other words, what the VA's rating schedule deals with is the average impairment for the average person and how that type of disability should be evaluated in terms of the criteria or parameters that are outlined. And I understand that that being the case isn't it then the situation that the veteran is supposed to make a demonstration as to why the veteran falls outside the average? You say for example, if it's me with my hearing loss and I'm shown there, I'm faced with the diagnostic code that sets up this average norm and I say, gee, I'm more impaired than average. That's correct, Jarn. I come forward and I say my loss is particularly acute in the following respects. And I think the veteran, if I'm not mistaken, the veteran in this case did make that offer. And that offer was rejected. That's correct. And he had succeeded with that offer then he would have gone past your step one, correct? Yes. And then help me to understand what's missing. But was the veteran prejudiced here in any way? Well, he was. And an opportunity to demonstrate why the average doesn't fit. Right. He made that offer and when this matter was appealed to the veterans court, the Mr. Dietrich explained to the veterans court that he was entitled to consideration that had been denied him. Those are laws determined whether or not the question of whether or not his case presents facts that take him past the average. Is that a factual question? Fields like this. That would be a factual question, Jarn. That would be something that would be up to the VA system through the sea if you see the deciding would be on the own, or authority. That would be correct, Jarn. In this case, however, the lower court said that silence was not such a showing. And the legal argument here, the absence of any reference to industrial impairment in the rating criteria for hearing. And I'm still turning it back to exactly how the VA operates under this system where the statute and the regulations say that all of the diagnostic codes have embedded in them are a consideration of the impact on employability, which is what it's all about. And so then the veteran has an opportunity, and every case to come in and say, I recognize that there's an average out here which makes sense. But I don't fit it. I'm my case is more extreme than the average. And they put forth the evidence about why the veteran feels the facts that came. And that evidence is considered. And if the evidence has merit to be decided in the VA system, the veteran then proceeds on to the possibility of anguish or treasure consideration. I'm saying, what's wrong with that system? There's nothing wrong with that system. What's wrong in this case is what the veterans court did by finding that Mr. Dietrich was not entitled as a matter of law to extra-schedular consideration. The board said he was not. It is not based upon that factual criteria, but based upon whether or not the VA's rating schedule by omitting any reference explicitly to occupational impairment renders that regulation or rating code inadequately for purposes of triggering the consideration of extra-schedular. Isn't that really the point? I mean, you're saying that the code isn't adequate because there's nothing that the veteran could objectively measure again for knowing what the average impairment is and what it's not. And so because it's inadequate, we should just go past it. But are we allowed to question the adequacy of the underlying rating? We are not allowed to review the rating code. What you are allowed to review is the meaning of an adequate rating criteria under 3.321. That's the criteria here that the lower court said the silence of the crime of the code does not render it an adequate. That the veteran is supposed to offer something above that inadequacy or demonstrated in some other way other than silence. We're asking as a matter of law does the silence make it inadequate as a matter of law? Thank you. Mr. G. D. Drogard used that the fact that the diagnostic code for hearing loss did not expressly include hearing occupational impairment that it somehow automatically triggered the exceptional case provision of section 3.321B1. However, the regulate both the statute and regulations plainly made clear that there are two considerations. Number one is the case extraordinary and does it present an extraordinary disability picture so that it renders the schedule of evaluation to be inadequate? Second, the veteran must also demonstrate a marked interference with employment or other related indisha such as frequent periods of hospitalization. Here, the veteran's court made a factual finding that none of Mr. D. Drogard's hearing loss incidents were extraordinary or unusual. What the problem is though, how does the veteran know what could be seen extraordinary or unusual? There's no measure of objective measure of what the norm is. So that's precisely why the veteran submits evidence. So the average impairment is reflected in the diagnostic codes, whether it be through consideration directly of occupational impairment, which is only reflected in for the diagnostic codes. There's also a separate consideration such as limitations in movement or sensory organs or a number of incapacitating episodes. These measures reflect how it indirectly affects the veteran's ability to work, but these all the diagnostic codes in one way or another reflect the average impairment in earning capacity. So it's the veteran submits additional evidence demonstrating that he has marked an interference with employment or other such evidence. The veteran's, the board specifically considers that evidence and makes a determination whether it rises to the level of an extraordinary case. Section 3.321B1 is a part of the argument here is you keep talking about average and extraordinary and you say types of evidence, but we're not understanding what is average. If you say to me, I've got approved that I'm better than the next person at someone at something, but I don't know what the next person's capability are. How can I... Well, the average impairment is measured by the percentage of violations. They have specific descriptions discussing, for example, for diabetes or for hearing loss, about the hearing loss, which is that issue in this case. They measure average impairment through pure tone, pure tone decibels and speech discrimination. And that's an objective measure. They have a hearing test. And depending on how you score in the hearing test, the audiologist can say you are failing to identify this percentage of words. And I have hearing measurements, I know it works. And so they say, well, if you are the way the code is set up is that if you have, if you fall this rate on the test, they say you're missing about this percentage of what you're hearing. And then that correlates into the workplace of this amount of inability to do your work. Yes, absolutely. So... A better relationship is keyed in through the test estimate. Right. And so even though for hearing loss, it's specifically measured through this objective, automatic testing results, the VA wrote the rating schedule in a way where the percentage ratings would reflect the veteran's impact on his earning capacity. But to the extent to that Mr. Deedrick is attempting to challenge the way the VA has somehow written the code to reflect the average impairment in earning capacity. It is 4.8. 4.8. So to the extent that Mr. Deedrick is challenging the manner in which the VA has written the code to provide an objective measure of average impairment in earning capacity. This court recently held in Wingard that the veteran's court and this court, they do not have such a restriction to review the way the manner in which the code has been written. What's the maximum disability that you could have under here in 100 percent? Yes, 100 percent. Mr. Deedrick was rated at 10 percent only because the result of his automatic test. Just to help him with the way the 10 percent what is there at 20, 30, 40? Yes, all the way to 100. I noticed those levels are teed back into the test for exactly how much you are failing in here. Right. Judgment has been made by someone that if you're missing this amount, you're about 10 percent of the radiation that can work place value and all the way to it if you're totally dead if it's 100 percent. Right. Here Mr. Deedrick, Mr. Deedrick's four automatic testing results resulted in the application of a 10 percent disability rating. He doesn't challenge that he has been titled to higher percentage rating fully through 4.85 rather he implicates this extra scheduler consideration through 3.321 but that is reserved for exceptional cases where the scheduler evaluations are found to be inadequate. That's the practical fact of what's happening here. We talked a little earlier about what happened in this case. Assume that we were the real Mr. Carvinger favor to say that there is this threshold place and what's the impact? It sounds to me as if nothing would change from what happened in this particular case. That we would say well the veteran gets a chance to come in or and make his case. Cor is Mr. Carvinger arguing that the entire schedule has to be found out and all of the diagnostic goes other than the four that we know about all have to be rewritten to place in them some specific criteria that is the equivalent of what is now there implicitly through the testing device. What do you think is going to happen if Mr. Carvinger's few prevails here? Well certainly not the latter option because this court held in Wingard that this court doesn't have jurisdiction to review the manner in which the VA has accounted for a disability. We're not supposed to be telling the VA how to write these codes. That's right. I'm just come back and tell me what what does the VA going to do if we accept Mr. Carvinger's legal? He write it up in an opinion and then I guess the VA remains in the case back. What happens? Well I don't know if you accept Mr. Carvinger's interpretation which is that that occupational impairment is only inherently considered for the I guess the four specific diagnostic codes that mention it. Then I guess the VA would be required under all other under its consideration of all the other many many disabilities to I guess consider that any time a veteran has submitted some evidence of economic impairment that he has satisfied the threshold inquiry as this court set forth and signed. But the threshold according to Mr. Carvinger only gets his claim on the early gottener which is an opportunity to present evidence that he falls outside of this norm whatever however we define the norm. I can't get my hands around what benefit there is to Mr. Carvinger's client in this case if we were to ruin his paper. Right I mean he's already submitted. I do also understand what the VA is supposed to do. So he's already submitted all the evidence of occupational impact that his hearing loss had on his employment. The veteran's court has already considered all of this evidence which is basically that he has a difficulty with conversations that he can no longer work as a heavy equipment operator that he has to work in complete independence as a carpenter. The veteran the board of veteran's court already considered all of this evidence and found it made a specific special finding that it didn't amount to an extraordinary case that required extra-schedular application of extra-schedular consideration. But I think with Judge Clever just pointed it could make that they could reset same conclusion even at step two if we found that when the rating doesn't expressly mention the employment activity or employability that if we found that as a matter of law they passed the threshold they still reach the same conclusion in this case don't they? Yes why is it a big deal I mean that can still have to preserve the same evidence and the VA still gets to consider the same evidence for purposes of reaching the same conclusion. Right so I'm sorry can you please I mean I sometimes have trouble in these cases understanding what it has to do and what impact it will be on the system if we do it plus I'm always concerned to know what will be the impact on the person that's in front of us the veteran. Frequently the veteran will get another hearing something will happen and there's an possible chance of the veteran will prevail on its claim. But it seemed to me that likely wasn't going to happen here. That's right you're on edge that board of very shorter thoroughly communicated the evidence. And Mr. Harper has been very careful which he is using words very carefully and he's been pointing out that this particular diagnostic code that we're talking about for hearing loss doesn't explicitly take into consideration employability concerns. He is the word explicitly sublimed. And so what I would expect the government to try and argue is that that may be the case which it is admittedly in fact there are only four codes out of hundreds of codes that explicitly prefer to employability. But this one which is what's in front of us implicitly take into consideration those things Mr. Carbuner says is absolutely right and it does it through the interrelationship between the kind of test that's being used to ascertain hearing loss and a judgment that then may be on the VA which is to be hasten they can not ours or yours as to when you what level of impairment will have corresponding effect on employability. That's that's right you're on that that's a position. Before you're done can I ask you about the junk initiative? You agree that it's still alive and well? Yes. Okay. Before the board board will have an opportunity to conduct and combine the facts analysis. And you've already done the Williams we don't have it that's not a judgment for us on that issue and Mr. Carbuner's not in he didn't respond in his recovery so I assume there's agreement that issue is moving to the appeal. Well to be clear to make sure that I understand the government's position this veteran says that because of the particular occupation which he was pursuing in construction there were special circumstances and what is the government view if you can summarize it quickly as to whether special circumstances would be considered. As to extra scheduler consideration. For instance the VA General Counsel opinion that Mr. Mr. Hedrick's site and his brief present one example in which extra scheduler consideration will be applied which is if the schedule and we referenced it and put note five of our brief. If the scheduler ratings for muscular skeletal disability are based solely on the range of motion but the evidence indicates that the claimant's disability impairs earning capacity by frequent hospitalization or because medication required for that disability in our fears with employment and it may be necessary to address section 3.2.1. So you already said that this should be considered? In that circumstances it may be necessary to address section 3.321 so if I don't know I don't have a relapse but I don't know if medication was necessary but if Mr. Hedrick were taking certain medications that affected his ability to work then it may be necessary that the VA refer to for a schedule or consideration. Okay thank you Mr. Hedrick. Mr. Clark-Druck, I believe I'd either misspoke or you misunderstood what I said in response to your question. In the context of this regulation the threshold question has to be answered in the affirmative and the threshold question is whether or not the rating schedule is inadequate. In this case the board found that the rating schedule was adequate. The court below affirmed that the rating schedule was inadequate. What's at issue here? Because of the silence of the diagnosis because it does not explicitly correct. That's right and therefore the rating schedule does not describe the total disability picture that a veteran would have other than in terms of the results of the testing. In other words all you get from this rating criteria is the results of testing. So you know that when you go in and look and see how you scored on the test you know whether you're somewhere between zero percent and 100 percent working. That's correct. Based on judgments made by audiologists, health experts and the whole rating people that make those kind of judgments should happen in medicine all the time. And you asked the government whether or not there would be a difference if the position asserted by Mr. Dietrich was adopted and there would be a difference because then as a matter of law the finding of the- So Mr. Dietrich should be able to come in and say the science that went into determining that with my degree of hearing laws I'm 10 percent impaired for social and employment at my ability. That's wrong. No. What Mr. Dietrich would say is that the rating schedule only relies upon that science and does not rely upon any other description of what renders a person- What's some of that other information that has missed it that's probably overlooked a long time. What should be in- It's not a question of whether the measurement is accurate but whether or not the measurement reflects how a disability impacts an individual's earning capacity. What is determined in the rating schedule is how it impacts the average individual. You're saying that averages are in progress along? No, I am not. I am saying that averages are the criteria? No, you're on. After the average is the expectation from Congress for the rating schedule. Congress did not write 3.321b. The VA wrote that in order to provide for when the schedule isn't adequate. The question of law here is what makes the schedule inadequate and what makes the schedule inadequate? Why is your client prohibited from showing the inadequacy of the schedule? To say, my particular hearing loss, I realized I was tested and I felt with this particular level that I'm taking some drugs, I'm taking some other things that the audiologist didn't know about that affect me and my ability to work in my home life. Because those issues don't go to the adequacy of the rating schedule, those issues go to whether or not there is or isn't a market interference in its employment or he has frequent hospitalizations. Those are the triggering events that allow for extra schedule. Earlier, the problem with the rating schedule was it didn't take those considerations particular to the individual and the consideration. That's correct. But my understanding is that the veteran always has an opportunity to present the circumstances a few years to the individual to say, I'm different. I have these problems. With respect to your honor, he has the opportunity to present that, but those considerations are not considered until such time as there is a determination that the rating criteria is inadequate. How was it really if we ruled in your favor on the point of law, which is appropriate? How would that benefit your client on the remanage given the facts that are already in this case? It would benefit Mr. Dietrich in two ways. First, it would benefit him in relationship to what the appropriate rating should be for his hearing laws. Should the rating be something higher than 10 percent? Is that already mentioned, Judge? No, it has not. What has only been... What additional evidence for he foot can the record on the remanage? It's not a question of what additional evidence he would put in your honor. That evidence has not been considered as it relates to whether or not this is extraordinary circumstances. They have said that it is not an exceptional case. The words of the BBN, the BBC say yes, that's exactly what they consider. That he doesn't present facts that qualify for an extraordinary circumstance. That's the second prong of this regulation. Under thumb, this court affirmed the lower court's interpretation and the VA's interpretation of this regulation that said that you have to meet the threshold requirement of establishing that the rating criteria is inadequate. That is the impediment to consideration of these particulars. And isn't this essentially the evidence that was showed that the rating criteria is inadequate, the same evidence that you'd look at that here if there's a marked impairment? No, you're not. In this case, what was argued below is that the silence of this rating code for hearing laws is per se evidence of inadequacy as a matter of law. Well, the four codes that you point to where there are explicit references. So we're not long ago with implicit consideration, we're talking about explicit considerations. They still do not provide the measurement, the detailed measurement against which you say your client could address his evidence. In other words, why wouldn't those codes, even where they expressly say that you're supposed to consider employability and impact on employability? Why wouldn't those be equally inadequate in your view? You're under the, as I mentioned, this court affirmed in thumb the interpretation offered by the VA of their own regulation and said that threshold consideration is that there must be a showing that the rating schedule is inadequate. If you don't show that the rating schedule is inadequate, you can't get to extra-schedular consideration. This is about whether or not as a matter of law when the VA made the choice to write more than 90 percent of its rating codes without the explicit reference to industrial impairment. Does that make those rating codes meet the threshold under 3.321? Thank you very much, John