[00:00:01] Speaker 04:
The first argued case this morning is number 14-7082, Dedrick against McDonald.

[00:00:08] Speaker 04:
Mr. Carpenter.

[00:00:10] Speaker 00:
May it please the court?

[00:00:11] Speaker 00:
Kenneth Carpenter appearing on behalf of Mr. Anthony Dedrick.

[00:00:15] Speaker 00:
A rating criterion which does not explicitly consider the effects of a disability as related to occupational impairment is inadequate as a matter of law.

[00:00:26] Speaker 00:
because that rating criteria does not contemplate the veteran's total disability picture.

[00:00:35] Speaker 00:
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.

[00:00:53] Speaker 01:
Before we get into that, can I just ask you a question about your second issue, the collective effect, the Johnson issue?

[00:01:03] Speaker 01:
Have you argued before the board or has Mr. Judd has argued before the board that that issue is still alive?

[00:01:14] Speaker 00:
Well, it's alive because of the remand.

[00:01:17] Speaker 03:
Because of the remand.

[00:01:19] Speaker 03:
Is the remand proceeding still alive?

[00:01:21] Speaker 00:
Oh yes, yes.

[00:01:21] Speaker 00:
It's ongoing.

[00:01:22] Speaker 00:
Well, it's been deferred pending the outcome of these proceedings.

[00:01:25] Speaker 03:
So then the Johnson issue can be raised in that proceeding?

[00:01:27] Speaker 00:
Oh yes, Your Honor, yes.

[00:01:30] Speaker 00:
As it relates

[00:01:32] Speaker 00:
to the back, but under Johnson now, because of the remand.

[00:01:36] Speaker 03:
Combined, combined.

[00:01:37] Speaker 03:
Correct.

[00:01:38] Speaker 03:
Yes.

[00:01:39] Speaker 03:
That case at our court had not been decided at the time.

[00:01:41] Speaker 03:
No, it had not.

[00:01:43] Speaker 00:
That's correct.

[00:01:44] Speaker 03:
In your view, the remand decision encompasses, embraces considering Johnson?

[00:01:52] Speaker 00:
Well, that it would be required to, yes.

[00:01:54] Speaker 00:
Yes.

[00:01:55] Speaker 01:
OK.

[00:01:56] Speaker 01:
I wanted to get that cleared up.

[00:01:58] Speaker 01:
And I'm sure the government will have its own view of whether that's the case or not too.

[00:02:03] Speaker 01:
But I wanted to get that cleared up and then we can move back to your issue.

[00:02:09] Speaker 01:
But isn't the point though on your first issue or your primary issue that all of these ratings are supposed to reflect this loss of potential income?

[00:02:22] Speaker 00:
Well, Your Honor, we believe that they do, and we believe that the government has or the VA has done what it was mandated by Congress to do, and that is create a rating schedule that provides specific criteria for the average impairment.

[00:02:37] Speaker 00:
The problem with the way in which the VA 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.

[00:02:52] Speaker 00:
Now in certain ones, ones that have been identified in the supplemental pleadings in this matter, the VA 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.

[00:03:16] Speaker 01:
So is it your view that the mere fact that it's not mentioned means that it's explicitly excluded?

[00:03:24] Speaker 00:
Well, that it is explicitly omitted.

[00:03:28] Speaker 00:
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.

[00:03:42] Speaker 00:
Under the rating criteria or under the criteria of that regulation, that regulation contemplates that when a rating criteria is inadequate, then you will examine

[00:03:53] Speaker 00:
whether or not a market interference of employment has taken place based upon such things as treatment hospitalizations.

[00:04:06] Speaker 03:
Are you arguing that the VA is prohibited from considering employability concerns?

[00:04:14] Speaker 03:
except in the four categories where it's explicitly been leveraged?

[00:04:17] Speaker 00:
Oh, no.

[00:04:18] Speaker 00:
No.

[00:04:18] Speaker 00:
To the contrary, Your Honor.

[00:04:19] Speaker 03:
They are required to consider it, and we believe that they... Aren't there many, many, many cases where extra-schedular consideration has been granted, where the diagnostic code hasn't made any mention of an employability product?

[00:04:38] Speaker 00:
I would disagree with any suggestion that many cases

[00:04:43] Speaker 00:
have been done that way.

[00:04:44] Speaker 00:
That is part of the problem.

[00:04:46] Speaker 03:
I went into a database, and I looked to see how many instances there have been of extra-schedular consideration.

[00:04:52] Speaker 03:
There are more than one or two, right?

[00:04:56] Speaker 03:
It's not uncommon that a veteran will be afforded the benefit of 4.12 or whatever it is, extra-schedular consideration.

[00:05:05] Speaker 00:
No, Your Honor, to the contrary, I believe it is uncommon.

[00:05:08] Speaker 00:
And it is uncommon because of needing to meet the threshold

[00:05:12] Speaker 00:
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.

[00:05:23] Speaker 00:
And it is that inadequacy of the rating criteria that's at issue in this case.

[00:05:28] Speaker 00:
Below, Mr. Dietrich argued to the Veterans Court that the very silence of the rating code as it relates to social or industrial.

[00:05:38] Speaker 03:
Does this mean that for all veterans

[00:05:42] Speaker 03:
who are seeking benefits, whose problems fall under diagnostic codes other than the aforementioned, all will qualify for excellence credit or consideration?

[00:05:54] Speaker 00:
No.

[00:05:54] Speaker 00:
They would meet the first threshold.

[00:05:58] Speaker 00:
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

[00:06:08] Speaker 00:
or there was a frequent hospitalization, which causes or requires the exceptional case to be considered for extra schedule or purposes.

[00:06:19] Speaker 01:
You said before that you thought that the VA did what Congress directed it to do.

[00:06:26] Speaker 03:
Yes.

[00:06:26] Speaker 01:
But if that's the case, Section 1155 specifically states that they will adopt a schedule of ratings, and then it says,

[00:06:36] Speaker 01:
And then it says the rating shall be based as far as practical upon the average impairment of earning capacity resulting from such injuries and civil occupations.

[00:06:45] Speaker 01:
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.

[00:06:55] Speaker 00:
Yes, and that's the point that we have conceded, that they in fact do that even in the rating schedule for hearings.

[00:07:01] Speaker 00:
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.

[00:07:11] Speaker 00:
In other words, it is an objective measure that has been made by the VA independently.

[00:07:18] Speaker 00:
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.

[00:07:35] Speaker 00:
And if the rating code provides no parameters for identifying what is the effect of the total disability

[00:07:47] Speaker 00:
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 schedule or consideration.

[00:07:59] Speaker 00:
That's the threshold, that's the step that the veteran has to demonstrate that the rating criteria is inadequate.

[00:08:07] Speaker 01:
You're saying that in everything except these four, the rating criteria is always inadequate, even though the rating criteria by definition is supposed to encompass consideration

[00:08:18] Speaker 00:
Yes, for purposes of the first step only.

[00:08:22] Speaker 00:
It does not grant or establish the entitlement to extra scheduler, 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 scheduler rating based upon the subjective or individualized disability picture for that particular veteran.

[00:08:48] Speaker 00:
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 set out by Congress.

[00:09:02] Speaker 03:
Isn't it, 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?

[00:09:13] Speaker 03:
You say, for example, if it's me with my hearing loss and I'm down there and I'm faced with

[00:09:18] Speaker 03:
the diagnostic code that sets up this average norm, and I say, gee, I'm more impaired than the average.

[00:09:27] Speaker 00:
That's correct.

[00:09:28] Speaker 03:
And I come forward and I say, my loss is particularly acute in the following respects.

[00:09:35] Speaker 03:
And I think the veteran, if I'm not mistaken, the veteran in this case did make that offer.

[00:09:42] Speaker 03:
And that offer was rejected.

[00:09:44] Speaker 03:
That's correct.

[00:09:44] Speaker 03:
If he had succeeded with that offer, then he would have gone past your step one, correct?

[00:09:50] Speaker 00:
Yes.

[00:09:52] Speaker 03:
Then help me understand what's missing.

[00:09:57] Speaker 03:
I mean, why?

[00:10:00] Speaker 03:
Was the veteran prejudiced here in any way?

[00:10:02] Speaker 00:
Well, he was.

[00:10:03] Speaker 03:
He was given an opportunity to demonstrate why the average doesn't fit.

[00:10:10] Speaker 00:
He made that proffer.

[00:10:12] Speaker 00:
And when this matter was appealed to the Veterans Court, Mr. Dietrich explained to the Veterans Court that he was entitled to consideration that had been denied him.

[00:10:22] Speaker 03:
Does our law determine whether or not the question of whether or not his case presents facts that take him past the average?

[00:10:31] Speaker 03:
Is that a factual question?

[00:10:33] Speaker 03:
It feels like it.

[00:10:34] Speaker 00:
That would be a factual question, Your Honor.

[00:10:35] Speaker 03:
That would be something that would be up to the

[00:10:38] Speaker 03:
VA system through the CAVC to decide it would be beyond our authority.

[00:10:43] Speaker 00:
That would be correct, Your Honor.

[00:10:44] Speaker 00:
In this case, however, the lower court said that silence was not such a showing.

[00:10:50] Speaker 00:
And the legal argument here.

[00:10:53] Speaker 03:
Silence being what?

[00:10:55] Speaker 00:
The absence of any reference to industrial impairment in the rating criteria for hearing loss.

[00:11:02] Speaker 03:
I understand that, but I'm still turning it back to exactly

[00:11:06] Speaker 03:
how the VA operates under this system where the statute and the regulations say that all the diagnostic codes have embedded in them are consideration of the impact on employee billing, which is what it's all about.

[00:11:20] Speaker 03:
And so then the veteran has an opportunity in 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.

[00:11:30] Speaker 03:
My case is more extreme than the average.

[00:11:34] Speaker 03:
And it puts forth the evidence about why the veteran feels that that's the case.

[00:11:40] Speaker 03:
And that evidence is considered.

[00:11:41] Speaker 03:
And if the evidence has merit,

[00:11:46] Speaker 03:
to be decided in the VA system.

[00:11:48] Speaker 03:
The veteran then proceeds on to the possibility of having extraschedular consideration.

[00:11:52] Speaker 03:
I'm saying, what's wrong with that system?

[00:11:55] Speaker 00:
There's nothing wrong with that system.

[00:11:57] Speaker 00:
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 extraschedular consideration.

[00:12:08] Speaker 00:
The board said he was not.

[00:12:10] Speaker 00:
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 inadequate for purposes of triggering the consideration of extra scheduling.

[00:12:35] Speaker 01:
Isn't that really the point you're making?

[00:12:37] Speaker 01:
that the code is inadequate because there's nothing that the veterans can objectively measure against for knowing what the average impairment is and what it's not.

[00:12:48] Speaker 01:
And so because it's inadequate, we should just go past it.

[00:12:53] Speaker 01:
But are we allowed to question the adequacy of the underlying ratings?

[00:12:59] Speaker 00:
You are not allowed to review the rating code.

[00:13:02] Speaker 00:
What you are allowed to review is the meaning of inadequate

[00:13:08] Speaker 00:
rating criteria under 3.321.

[00:13:12] Speaker 00:
That's the criteria here that the lower court said the silence of the code does not render it inadequate.

[00:13:22] Speaker 00:
That the veteran is supposed to offer something above that inadequacy or demonstrate it in some other way other than silence.

[00:13:31] Speaker 00:
We're asking, as a matter of law, does the silence make it

[00:13:36] Speaker 00:
inadequate as a matter of law.

[00:13:40] Speaker 04:
Let's hear from the government.

[00:13:42] Speaker 04:
Thank you.

[00:13:43] Speaker 02:
Mr. Diederich argues that the fact that

[00:14:05] Speaker 02:
the Diagnostic Code for Hearing Loss did not expressly include occupational impairment that it somehow automatically triggered the exceptional case provision of Section 3.321B1.

[00:14:18] Speaker 02:
However, both the statute and regulation plainly make clear that there are two considerations.

[00:14:25] Speaker 02:
Number one, is the case extraordinary?

[00:14:29] Speaker 02:
And does it present an extraordinary disability picture

[00:14:33] Speaker 02:
so that it renders the schedule of evaluation to be inadequate.

[00:14:38] Speaker 02:
Second, the veteran must also demonstrate a marked interference with employment

[00:14:42] Speaker 02:
or other related indicia, such as frequent periods of hospitalization.

[00:14:47] Speaker 02:
Here, the Veterans Court made a factual finding that none of Mr. Diedrich's hearing loss symptoms were extraordinary or unusual.

[00:14:55] Speaker 01:
The problem is, though, how does the veteran know what could be deemed extraordinary or unusual if there's no objective measure of what the norm is?

[00:15:06] Speaker 02:
So that's precisely why the veteran submits evidence.

[00:15:11] Speaker 02:
So the average impairment is reflected in the diagnostic codes, whether it be through consideration directly of occupational impairment, which is only reflected in four of the diagnostic codes.

[00:15:26] Speaker 02:
There's also a separate consideration such as

[00:15:30] Speaker 02:
limitations in movement or sensory organs or a number of incapacitating episodes, these

[00:15:39] Speaker 02:
reflect how it indirectly affects the veteran's ability to work, but all the diagnostic codes in one way or another reflect the average impairment and earning capacity.

[00:15:49] Speaker 02:
If the veteran submits additional evidence demonstrating that he has marked interference with employment or other such evidence, the board specifically considers that evidence

[00:16:01] Speaker 02:
and makes a determination whether it rises to the level of an extraordinary case.

[00:16:07] Speaker 01:
Section 3.321B1 is... I think the hardest argument here is you keep talking about average and extraordinary, and you say types of evidence, but we're not understanding what is average.

[00:16:23] Speaker 01:
If you say to me, I've got to prove that I'm better than the next person at something, but I don't know what the next person's capability are, how can I

[00:16:32] Speaker 02:
Well, the average impairment is measured by the percentage evaluations.

[00:16:36] Speaker 02:
They have specific descriptions discussing, for example, for diabetes or for hearing loss.

[00:16:44] Speaker 02:
talk about the hearing loss, which is that issue.

[00:16:46] Speaker 02:
In this case, they measure average impairment through pure tone decibels and speech discrimination.

[00:16:54] Speaker 02:
And that's an objective measure.

[00:16:56] Speaker 03:
They have a hearing test.

[00:16:58] Speaker 03:
And depending on how you score in the hearing test, the audiologist can say, you are failing to identify this percentage of words.

[00:17:06] Speaker 03:
And I have hearing impairment, so I know how it works.

[00:17:09] Speaker 03:
And so they say, well, the way the code is set up is that if you have

[00:17:13] Speaker 03:
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.

[00:17:24] Speaker 03:
Yes, absolutely.

[00:17:25] Speaker 03:
That interrelationship is keyed in through the test that's given.

[00:17:31] Speaker 02:
Right.

[00:17:31] Speaker 02:
And so even though for hearing loss, it's specifically measured through this objective audiometric testing results,

[00:17:37] Speaker 02:
The VA wrote the rating schedule in a way where the percentage ratings would reflect the veteran's impact on his earning capacity.

[00:17:47] Speaker 02:
But to the extent that Mr. Diedrich is attempting to challenge the way the VA has somehow written the code to reflect the average impairment and earning capacity.

[00:17:56] Speaker 02:
What is the code number that we're dealing with?

[00:18:06] Speaker 02:
4.85.

[00:18:06] Speaker 02:
38 CFR 4.85.

[00:18:10] Speaker 02:
To the extent that Mr. Diedrich is challenging the manner in which the VA has written the codes,

[00:18:33] Speaker 02:
to provide an objective measure of average impairment and earning capacity.

[00:18:37] Speaker 02:
This court recently held in Wingard that the federal court and this court, they do not have the jurisdiction to review the way, the manner in which the code has been written.

[00:18:54] Speaker 03:
And what's the maximum disability that you could have under here, 100%?

[00:19:02] Speaker 02:
Yes, 100%.

[00:19:02] Speaker 02:
Mr. Diedrich was rated at 10% only because the results of his autometric testing.

[00:19:07] Speaker 03:
Just helping with the rate of 10%, what is there, 20, 30, 40?

[00:19:13] Speaker 03:
Yes, all the way to 100.

[00:19:17] Speaker 03:
And those levels are keyed back into the test for exactly how much you are failing to hear.

[00:19:25] Speaker 03:
Right.

[00:19:25] Speaker 03:
Judgment has been made by someone that if you're missing this amount, you're about 10% reduction in workplace value, and all the way to if you're totally deaf, it's 100%.

[00:19:37] Speaker 02:
Right.

[00:19:37] Speaker 02:
Here, Mr. Diedrich's four audiometric testing results

[00:19:43] Speaker 02:
resulted in the application of a 10 percent disability rating.

[00:19:48] Speaker 02:
He doesn't challenge that he is entitled to a higher percentage rating solely through 4.85.

[00:19:58] Speaker 02:
Rather, he implicates this extra scheduler

[00:20:02] Speaker 02:
considerations through 3.321, but that is reserved for exceptional cases where the scheduler evaluations are found to be inadequate.

[00:20:10] Speaker 03:
That's the practical effect of what's happening here.

[00:20:13] Speaker 03:
We talked a little earlier about what happened in this case.

[00:20:17] Speaker 03:
Assume that we were to rule in Mr. Carboner's favor to say that there is this threshold place

[00:20:24] Speaker 03:
And what's the impact?

[00:20:25] Speaker 03:
It sounds to me as if nothing would change from what happened in this particular case.

[00:20:32] Speaker 03:
that we would say, well, the veteran gets a chance to come in and make his case?

[00:20:40] Speaker 03:
Or is Mr. Carpenter arguing that the entire schedule has to be found out and all of the diagnostic codes other than the four that we know about all have to be rewritten to place in them some specific criteria

[00:20:57] Speaker 03:
that is the equivalent of what is now there implicitly through the testing device.

[00:21:04] Speaker 03:
What do you think is going to happen if Mr. Carpenter's view prevails here?

[00:21:10] Speaker 02:
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

[00:21:22] Speaker 02:
for a disability.

[00:21:23] Speaker 03:
And we're not supposed to be telling the VA how to write these codes.

[00:21:27] Speaker 03:
That's right.

[00:21:29] Speaker 03:
Just come back and tell me, what is the VA going to do if we accept Mr. Carpenter's legal, write it up in an opinion, and then I guess they can and every man send the case back?

[00:21:41] Speaker 02:
What happens?

[00:21:46] Speaker 02:
Well,

[00:21:49] Speaker 02:
If you accept Mr. Carpenter's interpretation, which is 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

[00:22:17] Speaker 02:
under its consideration of all the other many, many disabilities to consider that if any time a veteran has submitted some evidence of economic impairment, that he has satisfied the threshold inquiry as

[00:22:36] Speaker 02:
court set forth in time.

[00:22:38] Speaker 03:
But the threshold, according to Mr. Carpenter, only gets his client what he already got here, which is an opportunity to present evidence that he falls outside of this norm, however we define the norm.

[00:22:52] Speaker 03:
Right.

[00:22:53] Speaker 03:
I can't get my hands around what benefit there is to Mr. Carpenter's client in this case if we were to ruin his paper.

[00:23:03] Speaker 03:
But I can't also understand what the VA is supposed to do.

[00:23:08] Speaker 02:
So he's already submitted all the evidence of occupational impact that his hearing loss had on his employment.

[00:23:18] Speaker 02:
The Veterans Court has already considered all of this evidence, which is basically that he has 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.

[00:23:32] Speaker 02:
The Board of Veterans Court already considered all this evidence and made a specific factual finding that it didn't amount to an extraordinary case that required application of extra schedule or consideration.

[00:23:49] Speaker 01:
But I think what Judge Clevenger's point is they could reach that same conclusion even at step two if we found that when the rating doesn't expressly mention

[00:24:02] Speaker 01:
the employment activity or employability that if we found that as a matter of law they passed the threshold, they still reached the same conclusion in this case, don't they?

[00:24:14] Speaker 01:
Yes.

[00:24:15] Speaker 01:
Why is it a big deal?

[00:24:17] Speaker 01:
I mean, the veteran still has to present the same evidence and the VA still gets to consider the same evidence for purposes of reaching the same conclusion.

[00:24:26] Speaker 02:
Right.

[00:24:29] Speaker 02:
So, I'm sorry.

[00:24:32] Speaker 03:
Well, I mean, I sometimes have trouble in these cases understanding what it is we're being asked to do and what impact it will be on the system if we do it.

[00:24:42] Speaker 03:
Plus, I'm always concerned to know what will be the impact on the person that's in front of us, the veteran.

[00:24:50] Speaker 03:
Frequently, the veteran will get another hearing and something will happen, and there's a possible chance that the veteran will prevail on his claim.

[00:24:58] Speaker 03:
But it seemed to me that that likely wasn't going to happen here.

[00:25:01] Speaker 02:
That's right, Your Honor.

[00:25:03] Speaker 02:
The Board of Veterans Corridors thoroughly considered the evidence.

[00:25:07] Speaker 03:
Mr. Carper has been very careful, which he is.

[00:25:11] Speaker 03:
He uses words very carefully.

[00:25:13] Speaker 03:
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.

[00:25:24] Speaker 03:
He used the word explicitly several times.

[00:25:27] Speaker 03:
And so what I would expect the government is trying to argue is that that may be the case, which it is.

[00:25:35] Speaker 03:
Admittedly, in fact, there are only four codes out of hundreds of codes that explicitly refer to employability.

[00:25:42] Speaker 03:
But this one, which is what's in front of us, implicitly takes into consideration those things that Mr. Kerbiner says is absent.

[00:25:52] Speaker ?:
Right.

[00:25:52] Speaker 03:
And it does it through the interrelationship between the kind of test that's being used to ascertain hearing loss and a judgment that's been made by the VA, which is the VA's to make and not ours or yours, as to what level of impairment will have a corresponding effect on employability.

[00:26:13] Speaker 01:
That's right, Your Honor.

[00:26:14] Speaker 01:
That's our position.

[00:26:17] Speaker 01:
You've done, can I ask you about the Johnson issue?

[00:26:19] Speaker 01:
Yes.

[00:26:19] Speaker 01:
Do you agree that it's still alive and well?

[00:26:22] Speaker 01:
Yes.

[00:26:22] Speaker 02:
OK.

[00:26:23] Speaker 02:
Before the board, the board will have an opportunity to conduct a combined effects analysis.

[00:26:29] Speaker 03:
And you've argued under Williams, it's not a final judgment for us on that issue.

[00:26:33] Speaker 03:
And Mr. Carpenter is nodding.

[00:26:35] Speaker 03:
He didn't respond in his reply brief.

[00:26:37] Speaker 03:
So I assume there's agreement that that issue is mooted from the appeal.

[00:26:43] Speaker 04:
That's correct.

[00:26:44] Speaker 04:
clear to make sure that I understand the government's position.

[00:26:47] Speaker 04:
This veteran says that because of the particular occupation which he was pursuing in construction, there were special circumstances.

[00:26:58] Speaker 04:
And what is the government's view, if you can summarize it quickly, as to whether special circumstances would be considered?

[00:27:10] Speaker 02:
As to extra scheduler consideration, for instance, the VA General Counsel opinion that Mr. Dietrich cites in his brief presents one example in which extra scheduler consideration would be applied, which is if the schedule, and we referenced it in footnote five of our brief,

[00:27:36] Speaker 02:
If the scheduler ratings for musculoskeletal 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 interferes with employment and may be necessary to address Section 3.3211.

[00:27:55] Speaker 04:
So you're saying that is to be considered.

[00:28:01] Speaker 02:
In that circumstances, it may be necessary to address Section 3.321.

[00:28:07] Speaker 02:
So if, I don't know, I don't have hair loss, but I don't know if medication was necessary, but if Mr. Dederich were taking certain medications that affected his ability to work, then it may be necessary that the VA refer him for extra schedule or consideration.

[00:28:28] Speaker 04:
Okay.

[00:28:29] Speaker 04:
Thank you, Ms.

[00:28:30] Speaker 04:
Dixon.

[00:28:39] Speaker 00:
I believe I either misspoke or you misunderstood what I said in response to your question.

[00:28:46] Speaker 00:
In the context of this regulation, the threshold question has to be answered in the affirmative.

[00:28:54] Speaker 00:
And the threshold question is whether or not the rating schedule is inadequate.

[00:28:59] Speaker 00:
In this case, the board found that the rating schedule was adequate.

[00:29:03] Speaker 00:
The court below affirmed that the rating schedule was inadequate.

[00:29:07] Speaker 03:
What's at issue here... Why do you say it's inadequate?

[00:29:10] Speaker 00:
Because of the silence of the diagnostic code for hearing.

[00:29:16] Speaker 03:
Because it doesn't explicitly explain the correlation between hearing test and work impairment.

[00:29:22] Speaker 00:
That's right.

[00:29:23] Speaker 00:
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.

[00:29:36] Speaker 00:
In other words, all you get from this rating criteria is the results of testing.

[00:29:41] Speaker 03:
The results you know that when you go in and look and see how you scored on the test, you know whether you're somewhere between 0% and 100% were compared.

[00:29:49] Speaker 03:
That's correct.

[00:29:50] Speaker 03:
Based on judgments made by audiologists, health experts, and the whole range of people that make those kind of judgments that happen in medicine all the time.

[00:30:01] Speaker 00:
And you ask the government whether or not

[00:30:03] Speaker 00:
there would be a difference if the position asserted by Mr. Dietrich was adopted.

[00:30:09] Speaker 00:
And there would be a difference, because then as a matter of law, the finding of the- Back up for a second.

[00:30:15] Speaker 03:
So Mr. Dietrich should be able to come in and say the science that went into determining that with my degree of hearing loss, I'm 10% impaired for social and employment availability.

[00:30:32] Speaker 03:
That's wrong.

[00:30:33] Speaker 00:
No.

[00:30:34] Speaker 00:
What Mr. Dietrich would say is that the rating schedule only relies upon that science and does not rely upon any other

[00:30:44] Speaker 03:
description of what renders a person.

[00:30:54] Speaker 00:
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.

[00:31:05] Speaker 00:
What is determined in the rating schedule is how it impacts the average individual.

[00:31:13] Speaker 00:
No, I am not.

[00:31:15] Speaker 00:
I am saying that averages are the criteria.

[00:31:18] Speaker 00:
No, Your Honor.

[00:31:19] Speaker 00:
The average is the expectation from Congress for the rating schedule.

[00:31:25] Speaker 00:
Congress did not write 3.321b.

[00:31:28] Speaker 00:
The VA wrote that in order to provide for when the schedule isn't adequate.

[00:31:35] Speaker 00:
The question of law here is what makes the schedule inadequate.

[00:31:39] Speaker 00:
And what makes the schedule inadequate?

[00:31:41] Speaker 03:
Why is your client prohibited from showing the inadequacy of the schedule?

[00:31:46] Speaker 03:
You say, my particular hearing loss, I realized that I was tested and I felt at 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.

[00:32:01] Speaker 00:
Because those issues don't go to the adequacy of the rating schedule.

[00:32:05] Speaker 00:
Those issues go to whether or not there is or isn't a market interference in his employment or he has frequent hospitalizations.

[00:32:13] Speaker 00:
Those are the triggering events that allow for extra scheduling.

[00:32:16] Speaker 03:
The problem with the rating schedule was it didn't take those considerations particular to the individual into consideration.

[00:32:23] Speaker 00:
That's correct.

[00:32:24] Speaker 03:
But my understanding is that the veteran always has the opportunity to present the circumstances peculiar to the individual to say, I'm different, I have these problems.

[00:32:35] Speaker 00:
With respect, 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.

[00:32:47] Speaker 03:
How would the ruling, if we ruled in your favor on the point of law, how would that benefit your client on the remand, given the facts that are already in this case?

[00:32:57] Speaker 00:
It would benefit Mr. Dietrich in two ways.

[00:33:00] Speaker 00:
First, it would benefit him in relationship to what the appropriate rating should be for his hearing loss.

[00:33:06] Speaker 00:
Should the rating be something higher than 10%... Hasn't that already been judged?

[00:33:11] Speaker 00:
No, it has not.

[00:33:12] Speaker 03:
What has only been... What additional evidence will he put in the record on the remand?

[00:33:19] Speaker 00:
It's not a question of what additional evidence he would put in, Your Honor.

[00:33:22] Speaker 00:
That evidence has not been considered as it relates to whether or not this is extraordinary circumstances.

[00:33:30] Speaker 03:
They have said that it is not an exceptional case.

[00:33:32] Speaker 03:
But the words of the BBHCBC say, yes, that's exactly what they considered, that he didn't present facts that qualify for an extraordinary circumstance.

[00:33:43] Speaker 00:
And that's the second prong of this regulation under THUN,

[00:33:49] Speaker 00:
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.

[00:34:03] Speaker 00:
That is the impediment to consideration of these particulars.

[00:34:08] Speaker 01:
And isn't essentially the evidence that would show that the rating criteria is inadequate the same evidence that you'd look at to see if there's a marked impairment?

[00:34:16] Speaker 00:
No, Your Honor, not in this case.

[00:34:18] Speaker 00:
What was argued below is that the silence of this rating code for hearing loss is per se evidence of inadequacy as a matter of law.

[00:34:31] Speaker 01:
The four codes that you point to where there are explicit reference, so we're no longer dealing with implicit consideration, we're talking about explicit consideration.

[00:34:42] Speaker 01:
They still do not provide the detailed measurement against which you say your client could address his evidence.

[00:34:54] Speaker 01:
In other words, why wouldn't those codes, even where they expressly state that you're supposed to consider employability and impact on employability, why wouldn't those be equally inadequate in your dispute?

[00:35:07] Speaker 00:
Your Honor, as I mentioned, this court affirmed in fund

[00:35:12] Speaker 00:
the interpretation offered by the VA of their own regulation, and said that the threshold consideration is that there must be a showing that the rating schedule is inadequate.

[00:35:22] Speaker 00:
If you don't show that the rating schedule is inadequate, you can't get to extra schedule or consideration.

[00:35:29] Speaker 00:
This is about whether or not, as a matter of law, when the VA made the choice to write more than 90% of its rating codes

[00:35:39] Speaker 00:
without the explicit reference to industrial impairment, does that make those rating codes meet the threshold under 3.321?

[00:35:48] Speaker 04:
Thank you very much, Your Honor.

[00:35:52] Speaker 04:
Thank you, Mr. Carpenter, and thank you, Ms.

[00:35:55] Speaker 04:
Sandberg, for speaking in this submission.