minutes covered before we go any farther just straighten me out if you would on what the practical impact of a decision in your favor here would be given that as i understand it mr warner h correct your honor except that in this system you get extra schedule or consideration for a total rating which is referred to by the acronym t d i you need extra schedule or consideration under three point three two one b is a slightly different regulatory scheme right but does it by deuce of a larger pot of money at the end it would potentially but there is nothing under three point three two one b that requires it to go all the way to total in other words the adjustment could be right to the relevant timeframe from february one thousand nine hundred six when he met the scheduler requirements under four one six a for a combined rating of seventy percent is actual mathematical ratings if you use what i call non v a math that actually total one hundred percent scheduler but using the rating schema for the v a they combine those ratings for compensation purposes and he's paid only at the rate of seventy percent and the question then becomes whether or not under this extra scheduler provision where there is evidence of a market interference of employment is the fact that he had a combined rating of seventy something that should have been taken into consideration when they both decided by the board and raised by the appellant in the briefing before the veterans court the issue i think that the government is making is the way in which the question of regulatory interpretation was presented in the briefs in terms of the error as to why this regulation was not correctly a plot and in the briefing we make two arguments one of which was out of eight to ten of your of your in the opening brief or made below hello i'm sorry well the argument that was made below is what is the legal standard that is required to be considered under three point three two one b and the court below said that  in terms of the argument that was presented below that the board was confused about what the regulatory criteria was or the legal standard to be met that the board didn't give an adequate statement of reasons or bases for why the bat from was not entitled under that regulation so the argument was presented that the regulation was a pleco ball and was not correctly a plot because they didn't they limited the consideration only to the back disability and that's clear from the board's decision three point three two one is framed in the alternative for service connected disability or disability and that the claim is broadened once you go to the extra scheduler considerations and must consider the additional service connected disability that the veteran has for purposes of the assignment of an extra schedule or rate other words whether that rating as a sign would be adequate under the rating schedule in this case the back disability is rated under four point one seven small a which is a specific  and the only other available rating to mr warner is a sixty percent rating which is based totally upon incapacitating episodes incapacitating episodes have nothing to do with the effects of his other service connected disability therefore he is limited by regulation to getting more than a forty percent rating which then implicates the provisions of three point three two one b was three point shows that he had combined rating of all of his service connected disability at seventy percent and that seventy percent combined rating was demonstrative evidence of a market interference with employment and that is the specific regulatory criteria under three point three two one b what the board did and what the court below affirm was to allow the v a to only look at this through the narrow prism of whether or not his service connected back disability and are required or are raised a market interference with employment and that's contrary to the plain language of the regulation there impermissibly narrowing the regulation to only allow them or require them to consider the service connected condition that the claim for increases rates but if it's part and parcel of the same claim and the regulation is broader then the individual service connected disability which the plain language of the regulation requires then the veteran should be entitled to a much broader consideration than the very narrow consideration that was schedule a schedule or rate but that doesn't have anything to do with the extra schedule arranging the extra schedule rating under the regulation at issue here three point three two one b has no schedule or requirements two it's just whether or not as a result of the veteran service connected disability or disability there is a market interference with employment ok because i'm just i mean you said this could arguably go back to ninety nine yes right that's correct i'm just looking at the record here and it seems like he had a disability rating that increased to ten percent ninety seven to twenty percent in two thousand and four and to forty percent in two thousand and five so you're suggesting that if he were to win on the current argument of extra schedule a consideration he could go back and get that for periods in which he was way that ten percent disabled or twenty percent say no the decision in two thousand and five took the effective date all the way back to nineteen ninety six or i'm sorry nine hundred ninety five for the grant of the forty percent rating so the forty percent rating increase became effective as of december hundred five the date that your address ing in two thousand and five was when they made that decision about the effective date for that schedule or a war and the issue here is his in title meant from that date forward to consideration under three point three two one b for an extra schedule rating not for the scheduling and the only other of vailable reading to him is the difference between forty and sixty which is quest at the time for an extra scheduler rating no we did not and that's one of the very unusual things about this particular regulator there is no v a form or application for benefits under this particular regulation one could argue that the v a form eighty nine forty four an extra ticket is a rating based on employee ability is covered by that v a form but there is no comparable v a form for three point three two one  every claim for disability there's no claim and the v a has to look at whether or not you've met of requirements for extra scheduler benefits if if you meet the requirements set out under the regulation and that is that the rating schedule is not adequate to compensate for the level of disability that is present the disconnect in the v a s regulation is that the v a regulation refers to both service connected disability or disability the v a would limit that consideration only to the particular claim at issue when their regulation is broader than that i don't understand what the difference between the two when you're saying that so what's the difference between the same and it should be broader than that what's and when i look at the qualifications for three point three two one be the market interference with employment is it the back disability the award of ten twenty and what ultimately increased to forty was for the needy and not the back or for a combination of both that was actually i believe both were pending and ultimately all that was before the board in this particular case was the rating to be assigned for the back to include extra schedule or consideration and the question is how is the answer to my question was that the ratings had ten twenty and forty percent to the ninety two thousand five was all about the back and not  that's predicated on your i'm assuming that when you go back to nine hundred ninety six or to whatever timeline that there was somebody would have at the time have looks given what he was being awarded at whether or not there was an extra only to the back that because extra scheduler was required to be considered and there was a may two thousand and nine joint remand that said go back and look at the evidence of market interference the point below was is that that market interference had to consider the fact that he met the scheduler requirements he had a combined rating of seventy all the way back to february of one thousand nine hundred six and from february march of two thousand marks three first two thousand and six with alice so there's a considerable window here potential additional disability higher than seventy combined between february ninety so it's getting one hundred percent now from march ninth of two thousand and six bedroom and the extra scheduler obviously can't go over one hundred percent that's correct so what we're talking about again is the window we find a qualified answer first but i think the answer it sounds like what the actual well put it this way the board itself seemed to think that this whole issue might be moot because they said so and they said the only reason we're going on and saying anything more about this just because we've been instructed to do so but other than that they six is higher than the lower standard of market interference you have to be unable to follow substantial gainful occupation for for one six total extra schedule rating as opposed to extra schedule rating under compute the standard for p d i you four point one to fail an employee ability with the standard for extra scheduler rating under three point three two one b want and that's why the veteran court that know there was no misunderstanding there than the market interference was an misinterpretation of the ranks we don't we don't challenge jurisdiction on that issue and we didn't challenge it in our brief we challenge it only on the separate issue of whether or not the board was permitted under three point three to one the first argument mr warner's argument that somehow his grants of t d i you effective in two thousand and six should have been considered by the board and looking at extra scheduler for what he now says back in one nine hundred ninety one claim he is entitle to extra schedule or treatment because of market interference with an employee ability to do to please them he did lose on that right but in a prior  proceeding correct but in this proceeding as well the board found that he was not entitle to extra special consideration for his back to civility writing but but he's saying that the error is of course they consider his entire array point three to one do you want it applies to disability or disability here the only increase reading that was before the board was the back and the buzzer of the remission yes ok no is there at some point is is there going to be a time in which the knees and the back will all come together so that the board the court will consider whether he's entitled to extra schedule or benefits because of his disability that is unclear i mean my understanding is that there was that the board reconsidered the needs and at that time he didn't bring up the package so mr warner has never even taken the position before the board that if you consider allows the board to look only at a single disability if mr beck was that to your very first point which is to the extent that there's an argument to be made there he's way too young and weighted rate right you didn't raise that for the better part and that type sufficient to two to compensate for the loss of earning capacity with respect to that disability here with respect to the back mr moore has a forty percent in the board found that because of the his flexion means that he argued also well my question is only five degrees and you can have up to thirty degrees for forty percent he the court found no the forty percent is adequate for you and therefore we don't even have to look at we agree with you on that and then three months from now the c a b c decides that no i mean you should be doing these two together you shouldn't you know how would he have known that that was the play when he was back the knees have been remitted to see whether he was entitled to higher skills or rating if you've got a higher schizo rating the whole issue of extra scheduling could have been rendered moot the in johnson there were the how  it sure does so that there's a reason why three point three to one do you want applied to disability or disability because you have to show that the rating for a particular disability doesn't doesn't adequately compensated for your for your problem and here it's got to you as of two thousand six hundred forty and he said a combined seventy percent one hundred ninety six which adequately that joint remain and provided that the board was to address whether the specific evidence in the record demonstrated that the veterans disability lumbar spine disability markedly interfered with his employment such as such that an extra scheduler rating would be warranted now the legal standard here under the v a s regulations is market interference with employment the regulation however is question of law this before this court is is that one of their current who doesn't have an application form is not told that he has to tell the v a where and when the market interference took place on any form is suddenly subject to a board decision that narrows the consideration in direct contravention to the plain language of the length of the regulation is getting the benefit of that regulation market interference was shown by the fact that the v a acknowledged by their scheduler rating that this veterans combined ratings were at seventy percent that was in effect from february two thousand nine hundred ninety six the march of two thousand and six when they granted the extra scheduler total rate the point here simply is is that the veteran is at a disadvantage if the  doesn't follow the plain language of its own regulations the regulation specifies what to be considered what was to be considered that was the issue that was raised below and the court below said no it's you that's confused appellant it's not the board that's confused where before this court asking you to resolve that confusion does the regulation require a broader consideration than the consideration that was made by was whether or not the board was confused about the legal standard and the legal standard is market interference and if you look only to the evidence of market interference for a single disability that argument made to the c a b c the c a b c our deck and argument that you just articulated that as articulated was not me what was made was that the board was confused about the legal standard and did not give an adequate statement of reasons or bases for why it narrowed because they only consider the want it narrowed the consideration under extra schedule or under three point three to one b to the back disability alone left as any for the questions ok thank you thank both c