we'll hear argument in three cases a fourth case will be submitted without argument on the brief later today that fourth cases in appeal to zero zero seven dash thirty two seventy two el castor versus general services administration before calling the first case like to just observer the historical note that really at least in my own tenure on this court we had three women judges this is in the newman pros and more but since we draw panels at random i suppose someday we will have such a panel in the meantime i'm very pleased to join my two sisters on this panel we'll hear argument first in smith versus department of veteran regulation well of the one of the things with the a b c said was there is no objective evidence that it has a marked interference with the point is that your view that there was objective evidence or that such objective evidence is not necessary  well they didn't weigh as they say by itself it's not adequate to support isn't that clearly a weighing that by itself it doesn't say where rejecting it we're not even considering by itself i was saying that there was no crime get another job he just said i if i were to have tried for such a job maybe they wouldn't have given it to me because maybe they would have thought that i was incapable otherwise than for his impaired knee qualify to be hired as a police officer or a prison guard well i guess that is to whether or not they needed you know another question is what i mean if i'm a howitzer lone loader that doesn't have it in the do with police work why operate a crane for the army that doesn't have anything to do with police work so i wouldn't think that i would be qualified on x it is a service to be hired by the metropolitan police department evaluate whether or not some sort of experience in the military is necessary or sufficient to get a particular job with the d c metropolitan police well and i think that goes to their ability to win as it is that if there were a difference between them worried that with your badly you won't be able to stand or run or climb or to have the things that might be required of a police officer so for that reason we're going to have to reject your application he could have done that he didn't do that and you seem to be saying it doesn't matter if he says i think he might qualify to be a police officer that's enough and that has to be accepted as sufficient what's the basis of saying it has to be accepted insufficient and they necessarily have to be accepted as i think that they didn't say we're not going to consider this because we don't consider they consider and they said they seems to me they did exactly what you're saying they should have done which is considerate and way and find that wit conclude that they rejected it in the sense of excluding it altogether as incompetent  tell me your view of the law seems to be so i'll pretend i'm the veteran that if i can think of twenty jobs that i would like that i asked third that i'm qualified for that i can then get extra consideration for higher ratings from my disability my hurt knee occurring in the service because i maintain in my statement to the veterans department that that the injury is what's blocking me from those twenty jobs that i would like to have is that your view of the law might even that it is up to the court the way that they are but it doesn't necessarily regulation is there any indications that the congress was concerned with giving the veteran his preferred choice of job as opposed to making sure that he might get extra compensation if he or she is not able to get any joe can't earn a proper income of can't can't those earn a living wage you know and i think that that legislative or regulatory history is there an indication that the authors intended to give the injured servicemen his or her choice among numerous jobs of interest or else they get history leading up to the regulation that would suggest that the congress or the veterans department wants to give the injured veterans his or her choice among many possible jobs i i guess i'm taking issue with the concept of giving  armored truck driver and has had no trouble performing the duties of that position because of his in need so he has to be arguing that that's not good enough i deserve extra compensation because a different job provide competition to better it for the average impact of that take out of that disability on civilian occupation so it will be the case that for some veterans it will not  hakkar it up and you saying when you say it's the average if a veteran is very severely injured the compensation in the last is no more than the average impact i had assumed that this whole elaborate in fact the sayer proof and if this veteran had done the things that we're talking about which as far as we can tell were done they might very well have been a different factual situation for th a referral to this exercise normally because of a failure proof or as a matter of law as a matter and your view is that because there's a rating a regular rating scheduled for instance you lost one finger so you get my understanding is that's what he was doing that was his employment at the time he applied for this increase in the level of monetary compensation because of the service connected injury so my question to you is what's the significance of the fact that he already had a job education an example of what market interference is and one b b is that just that or in disability for example you have a rating for that particular disability or condition that disability or condition fire better and  take medication for example and that medication might make you drowsy and make you money to operate heavy machinery that was created disability picture and that's the language that uses regulations and disability picture that may not be  what happens to that better regional office can assign is right at this rate we read the regulation only body rather high level veterans department officials are permitted to award we we know that but the fact that it's exceptional just means that for the exception of opposing counsel says my client is the exception and you say no it isn't we're trying to find out why you're so sure isn't because and the reason i'm saying that she is not because the season here that this particular event or in had not shown that he was eligible to be considered under this exceptional scheme and not on the regular schedule vs he was eligible and they considered all the factors and said and concluded that the specific factors of his case didn't warrant the thirty percent disability that he was seeking to even be in that special process hasn't shown that he got in the gateway correct but is that i'm a little unclear though is that because he didn't put on any objective evidence of that circumstance or because even if he had proven that objective evidence that would be insufficient to constitute a marked interfere so when when they turn on their facts we see so many in which the ratings keep changing the people who are taking increased ratings and sometimes the ratings are decreased but you're telling us that no you get whatever your disability is there's a rating that applies and that's it and evidence whatever the additional circumstances are is irrelevant yes that's exactly correct as as disability progresses and more serious and there so we're not talking about whether he can get more money under the regular system we're only talking about whether he gets into the special it's just based on a different what do you take interference to mean the phraseology of the regulation obviously the whole phrases more interference with the plane but but just focusing particularly on the word interference what does that mean he can't get any job or you can only get a low paying job or you can only get a part time job what does that really mean your idea that any of those any any evidence that would present a disability causing difficulty you know again well how about if it causes a marked difference in income just prosthetics in question was a twenty thousand dollar differential but let's make it a little more dramatic let's say that he has a job now by which he earns twenty five thousand dollars a year and let's say he's qualified but for the effects of his injury for a job that would pay one hundred twenty five thousand dollars per year in salary that's a huge difference now would that sort of income differential qualify as a marked interference in employment and what would what would tell us what would we know now an awful lot of what we meet the criteria give us an example of what would meet the criteria and the example that you examples i can give the court again would be if if the disability required the veteran to take medication that medication may impact their ability to perform even more jobs than then just the condition itself would another example that was the veterans court decision was a veteran who had a foot condition that martin or you know twenty percent rating might say but that her condition had a horrible infection statement this provision that the ratings be based on the average impairment of earning capacity in civilian occupations that was changed before then ratings were based upon the individual the impact of the disability on the individual's civilian occupation prior to service so that maybe that can address the court's concern there was a conscious decision to apply the readings across the board every veteran if they have a disability that needs that need say twenty percent they get the same amount of money regardless of whether of what their actual occupation and the issue is whether the person's veterans individual condition or disability words that escape not their particular circumstances such as their either history or where in the country they live in which may present more difficulties finding certain types of jobs all of those things are by regulation not to be considered it's only that particular disability picture actual condition and the results of that condition can i ask you about another aspect of the regulation which is who gets to approve what  authority to approve an increase so how does that work they have to find an inadequacy and then it gets sent back to this individual and is he required it says he's authorized to approve but it doesn't seem to mandate approval says does he have total discretion then to decide whether and how much to approve evaluate the board or the c a b c was correct in determining whether or not the evaluation was inadequate but even if they are they decide it is inadequate that's the end of the case it's a goes back to this individual and he says i don't that this veterans didn't provide the information they have written that i had inquired about the food that even if you had applied for a police job and been turned down because of his i believe that's correct so really what sunk his quest for thirty percent was the very injury and self his disability picture as the regulation calls it just wasn't terrible enough to warrant exit from the schedule and special consideration under the non schedule method and yes you and i think this is a had nothing to do with his individual circumstances or what other jobs he was qualified for or wanted or how much more those other jobs might have earned the real problem was somebody with this kind of knee injury can never get off the schedule  or that he was frequently hospitalized or had any other leg of the story he simply said that he had interference with employment and the veterans a decision maker said no no he didn't and it seems to all you're saying that his problem is that the knee injury is just not ever going to qualify his kind of knee injury whether to his knee or anybody else's needs that injury is never going to get you by we're trying to figure out what are the additional factors then it's very hard to picture how it would work very hard to picture a case of a veteran with a limb injury where it would suffice in your view of the array to get him beyond the scheduler rating to potentially a higher rating under this special system i agree that it's  polluter and again and again i would i would say that that as a result of this regulation really to exceptional and how many times has it been used if ever that's a very  not very precise it makes it hard to understand when this regulation is real or it's a kind of charade of what iraq has they have there are there any border see a b c decisions that deal with this or that have found the  and so if something doesn't isn't taken into account under four point one and it is due exclusively to the service connected disability and it would be our contention that as a matter of law this three point three two has a problem with his educational level and that's part of what's keeping him from earning a higher capacity for instance if he was i mean you know labor who got injured could no longer perform a labor and cannot get a higher paying job because he can't perform new labor anymore but then his occasional prevents him from actually getting a better paying job but that would not be due saw only or exclusively to service connected disability does because he lacks education level but in a circumstance where the only reason he can't get