not explicitly consider the effects of a disability as related to occupational impairment isn't adequate as a matter of law because a rating criteria that there's not because that grading criteria does not contemplate bedrooms foetal disability picture in this case is for dealing specifically with hearing loss hearing loss under the rating criteria is gauged by a pure tone examination and a particular the ratings are supposed to reflect the loss of potential and we all know we believe that they do when we believe that the government has to be a has done what it was mandated by congress to do and that is create a re a rating schedule that provides specific criteria for the average impairment the problem with the way in which the v a has chosen to do it in the vast majority of its rating criteria is that it has explicitly excluded any consideration for occupational industrial parent explicitly now in certain ones ones that have been an identified in the supplemental pleadings in this matter the v a has in fact directly addressed those issues of how the disability picture of affects the impairment of earnings in relationship to the varying markers or of levels of disability for renders the rating criteria for those that do not mention inadequate as a matter of law under the criteria set out in three point three two one big under the rating price or under the 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 three point three two one which is that the rating criteria must be determined to be an adequate before you can go to the next step and it is that in adequacy of the rating criteria that's at issue in this case to then assert and have the v a and the board examined 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 scheduler purposes you you said before that you thought that the v a did what congress directed it to but if that's the case  section eleven fifty five pacific lee states that they were months off the schedule of rating and then and then it says the rating shall be based as far as practicable upon the average impairment of earning capacity resulting from such injuries in civil occupations the high definition each rating starts with the assumption that that what they're supposed to be doing in the consider the reduction in earnings 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 a  objective measure that has been made by the v a independently what is contemplated by three point three two one is the personalized or in devoted to allies subjective disability from the  service connected disability or disability 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 veterans 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 consideration that's the threshold that's the step that the bedroom has to demonstrate that the rating criteria is inadequate and you're saying that in every except these for the rating criteria is always but it requires the v a 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 subject of or individualized disability picture for that particular veteran in other words what the b is rating schedule deals with is the average impairment for the average person and how that type of disability the earth or that that would be correct are in this case however the lower court said that silence was not such a showing and the legal argument here in the absence of any reference to industrial impairment in the rating criteria for a very pleasant i'm still i'm still turning it back to exactly how the the a operates under this system or the statute and the regulation 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 convey extra schedule or consideration the board said he was not it is not based upon that factual criteria but based upon whether or not the v a s raiding schedule by omitting any reference explicitly to occupational impairment to question the adequacy of the underlying rating if we were not allowed to review the rating codes what you are allowed to review is the meaning of an adequate rating criteria under three point three two one that's the criteria here that the lower court said the silence of the cry of the code does not render it but 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 include hearing occasional param and that it somehow automatically triggered the exceptional case provision of section three point three two one however directly with 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 a schedule evaluation to be an adequate  appointments or other other such evidence a veteran of the board specifically considers that then and makes a determination whether it was to the level of an extraordinary case section three point three two one we want to answer and really my better than the next person that someone has something but i don't know what the next person's capability are how can i well that was the average impairment is measured by the percentage evaluations that have specific description and discussing for exposure in a way where the percentage ratings would reflect the veteran impact on his earning capacity but to the extent that mr dieter is attempting to challenge the way the v a has somehow written the code to reflect the average five to the extent that mr drake is challenging the manner in which the v a has written the close to provide an objective measure of action pearman an earning capacity this court recently held and when guard that the federal court just all the way to one hundred is that that occupational impairment is only inherently considered for the i guess the four specific diagnostic codes that mention it  occupational impact that his hearing loss had on his employment the veterans court has already considered all of this evidence which is basically that he has difficulty with conversations that he has the particular occupation which who was pursuing it and construction there were special circumstances what is the government's use you can summarize it quickly as to whether levi 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 i therefore the grading schedule does not describe the total disability picture that a veteran would have other than in terms of the results of the test now the words all you get from this rating audiologist health experts the whole range doesn't happen in medicine all the time and you ask the government whether or not there would be a difference if the position asserted by mr dietrich was should be and it's not a question of whether the measurement is accurate but whether or not the measurement reflects how a disability impacts an individuals earning capacity what is determined in the ratings schedule is how it impacts the average individual your average no i am not i am saying that averages are the criterion no year on after the average is the expectation from congress for the ratings schedule congress did not write three point three two one b the v a wrote that in order to provide for when the schedule isn't adequate the question of last year is what not there is or isn't a market interference in his employment or he has frequent hospitalizations those are the triggering events that allow for extra schedule or the problem with the greatest ones and didn't take those considerations particular t it's not a question of what additional evidence he would put in your honor that evidence has not been considered as it to whether or not this is extraordinary circumstances they have said that it is not an exceptional  this court affirmed the lower court's interpretation and the v a 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 particular the interpretation offered by the v a of their own regulations and said that the threshold consideration is 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 schedule consideration this is about whether or not as a matter of law when the v a made the choice to write more than ninety percent of its rating codes without the explicit reference to