we're here today to address a very simple legal error made by the board and the veterans court in applying the wrong legal standard when terminating the scope of mr gallagher's ninety nine to claim a claim for a lower back injury fact we can go through the parts of the decision and so they're just rejecting the notion that that's what the boy did right well i mean that's certainly that's the government's position however there but you know it's clear from from the record that and which contain the clear and i'm sad if you don't actually prove you had signed into that reasons and basis was never particularly by the board in any at any stage or at any point in the last twenty four years all that did you raise are reasons and basis argument to is mostly factual first decision in this aspect is sufficient if they fail at the veterans court found that the board supplied sufficient reasons and basis of the evidence supports that then you're done at the veterans  doesn't earn i'm sorry the the record doesn't actually support any analysis there is this is your problem though if you keep talking about what the record supports were talking about and that it would be inherently means you're talking about a factual question are application of lot of fact this this particular thing that you think is a legal or what legal principle do you think that the that transport did in affirming the board's decision specifically  the i mean the governing law on this the it would be seche can you just tell me the legal role for the legal ruling should have been applied is that the by identifying just generally a body part is sufficient to state a claim that encompasses all the all possible you're talking about the obligation to reclaim sympathetically yes or how is that ever something we're going to be able to review the board did say it didn't have our obligation to reclaim sympathetically as i read the veterans or it agrees that the board had the obligation it just found applying that obligation to the facts of this case that was that i understand you disagree with that we could disagree with that too but albert the patient of the duty to read something sympathetically to the particular facts isn't that inherently an application of all the fact so again we're just to apply the correct standard because there's no there was no finding specifically where is there any evidence that the that the veterans court rejected the obligation to read a claim sympathetically or applied a different standard in the veterans who are affirming the board's decision they simply quote the same language that he didn't identify so and if you specifically as opposed to but the veterans court recognized that the board had an obligation to read the claim sympathetically did it yes it didn't say no we don't have that so the veterans court was applying the proper legal standard that the very didn't apply it the way you liked it because you think that there's conclusive evidence that any reasonable person would have come out differently but that's still application of lot of factors and that would be application of a lot of facts but there was never the first time that cytochrome was ever officially the the v a i'm sorry found that the medical records didn't go to the board it didn't go to the board and only four or did he just submit new material evidence within the one year time frame that was that  in which is a post hoc rationalization for what is a middle east infusing record however the only conclusion that supported by the actual records is that when he's at the v a considers his nine hundred ninety three medical records and this is a an affirmative finding in the records who have explain the error i mean at this do those ninety three documents this is what i think i'm confusing about the date i don't really think about or see your argument but those ninety three records do they show evidence to back injury dating all the way back or do they established a back injury as of ninety three he's not what did the boards or the are zero say on that play the or did they just give them retroactively back to ninety two because that was the data plane despite the statute that says you get the data the claim or the data into rows which operations later no the latter your honor they gave him the one thousand nine hundred eleven minute explicit finding as to whether three point one five six would apply to his ninety three medical records however they granted him one thousand nine hundred two as a date so nobody ever even made a determination that he actually had that condition and i need to not afraid i think that's probably why the secretary thinks that there was an error but they're not going to take that but it seems like you'd all agree with the government's remain and assuming we disagree with all of your arguments would you still object to remain for the government's purpose so the government's remains a considered turner issue won't convince the issues that are put before the court today first of all as i said the the veterans in my get you back to an earlier date then you have now right you have ninety four now if i get us back to at least ninety three ninety three medical then what's the point of applying turner even if we agree with her and we've never from turner in any of that your argument would be we should mean first term right if the court reached that issue yes but you don't need to reach the question of interpreted the appellant to still be making that argument they made it in their initial brief they backed away from it in a bit in the group i briefed to sort of equate this argument that we made about the necessity for a rematch if they're going to continue to argue that i suppose that you know well i guess the answer to that would be that the board and the v a veterans were can i ask you this as a government i think turner is correct i know you don't and i don't think you feel that but that's a complicated process it may be that you're just waiting at ford to come up in a minute appeal by about trying to to argue that it should be overturned certainly on i think would be premature for us to apply and as to whether it was correctly decided or not if we're not making an unless you can give us a reason why it remained is necessary well given the veterans apparent opposition to the re man which has been clear but mostly because they view it as detrimental to their ability to have this court rule in their paper on other issues you know it certainly if the court were not to do that and then would find that they would the veteran would prefer not to have that adjudicated that would come as some surprise of the government i would say because that's what you just said  kept reading this and try to figure out where that ninety two they came from or the back condition can you explain what happened here it does appear to be an error for all intents and purposes there's nothing to indicate you know there's ninety four there's ninety three this is what's confusing so that ninety three report was made but wasn't submit and so the evidence he submitted in ninety four was not within the one year period that's correct your honor and so that's why we have asked for the remain because the one gap in the record from a factual standpoint is these records were created during the one year appeal period at v a facility he submitted that evidence of ninety four and if it  it's three point one five six have been applied properly or applied at all it would it have been within the one year time period correct term so the earliest date could have ninety four or the date on top of that rose whichever was later that's correct and during that one year appeal period and so the records were created during the fuel period at v a facilities there's no indication that there was any factual findings made as to whether they were contract to be received there's no determination one way or the other although the government would acknowledge that from the record i've shouldn't happen is just because there was an error on one that we should compound that error with the other to make the two match they should match but they should match a ninety four and be a case law because he didn't even if the the original r o decision in ninety two was wrong it read the claim sympathetically to include psychotic that decision became on all the addition of the new material evidence wasn't submitted at all after the time period which which could do anything to the timing of  the finality of that original decision and exactly unless there was some receipt prior to the closing of that appeal period which is the only factual gap that we have right ok subject any further question and i just want to not beat a intention to challenge and i will say that the doctrine of constructive receipt which originated in the v a context in this bell versus your whiskey case in ninety two has progressive we've been applied by the veterans were two additional areas throughout that system and so i don't think you file that that isn't sufficient notice to the the benefit side of the house to start a clay except what kinds of things would be constructive notice as opposed to actual well so what what the court found in turner is they also the court framed it in the context of the duty to assist which the v a has so when they're collecting the the case records they have access to an electronic system which may alert them that there are some records out there that are part of the case so i guess but to me that sounds like actual notice it would be actual notice of the existence of the records and so that's kind of the rub there where they said you don't have to know of the contents of the records you only have to know they exist and you know they exist you've got to get them plane and notify them no there's no indication or that that burden was put on the part of the medical care professionals whose mission is to treat the veteran and so they are not charged with that duty it imposes a bit of an additional duty on the v a adjudicators to go out and look at cuts with consummate with their duty to assist and see are there records out there that again the turn of port said there is no relevant standard based on this court's precedents and so it doesn't really have to determine whether these could be relevant records it only determines if there are some additional records out there before we make our determination we've got to get those in house and determine if they could have an impact and so that's essentially the standard that put the v a now as you say this is a recent decision that the has not had a chance to see how it impacts cases and to make any determination as to what their position would be going forward and a case of its application i wouldn't want to speak of that which you of us to me a pact of term or in this particular case so turner under turner the impact in this case would be if there were a determination made that these records which were created during factual finding either way and this court certainly shouldn't make in the first instance i've knowledge that there's not a lot to go on but you never know what could be presented maybe there would be an interview with someone who worked on the case or something but you know the impact on the case could be the result being what the veteran has asked for in terms of a one nine hundred ninety two effective date if it were determined that those records were associated with the case in the one your appeal period and then certainly secondarily if that's the case if it would have a beneficial impact  argument today that the veterans taking a different position that's essentially our position on the re mandate as the court has discussed previously that the other arguments that mr gallagher advances were before this court are really that while they will mention the fact that static was not listed on the claim form they went on to say there's no evidence in the record associated so they're asking for this appeal is limited to two years with with them because they've already gotten but certainly the veterans entitle to pursue it as we've said here in this court the jurisdictional limitations of the or prevent ost of the arguments that mr gallagher has advanced and then in terms of the turner issue you know there is that gap in the record case is i don't understand even if you're correct and how you can get back to one thousand nine hundred two because you did file it out and you didn't file a new immaterial evidence claim with and one year as never been provided by any by the v a or the board of any stage and that in and of itself is a reason or well we don't have jurisdiction over that i mean it's clear that under the basic rules you get a decision from the regional office if you don't submit and owed it becomes all up to a year after you can submit new material evidence associated with that claim and it will render that original the fact that the v a went back to ninety two on the other one because it misapplied three point one five six or something else doesn't help you here not not not that wouldn't help us if we were i'm sorry i just want to know what  you think there is to give you a ninety two day when you didn't appeal the ninety two decision and it became final and he submitted that no material evidence lay in more than a year later the legal basis