it requires b a to fully explain i'm sorry explain fully the issues and suggest a submission of evidence which the claimant may have overlooked and which would be of advantage to the claimants position we're dealing with  application of lot of fact here i know you're saying the board veterans court excuse the board that you're to explain everything to mr dickens and before and after that articulated that it understood three point one zero three c and then shifted a burden over to miss dickens to affirmatively pleaded or affirmatively raise it or something like that that's a misinterpret not know that that was a requirement i mean if you look at the correspondence going back and forth between the dickens both mr and mrs and of the  it's clear that everybody knew that this had to be provided so i think that gets into the factual situation here and we would urge the courtroom to reverse the veterans course legal error that's so you can't bring it up now that's a legal error because that is extending this is this issue exhaustion idea to something that was reasonably before the board of actions appeals and more importantly than that it's a legal requirement of d n a so that's illegal or but to answer question we were asking your colleague if the if there is a limited joint motion to remain and if the the board isn't required for us certain issues then isn't it to me seems to fall within the classic issue preclusion well because you're making it legal argument for the first time on appeal if we accept and i know you will want us to get rid of issue preclusion let's fix assume we're not going to if we accept that this context your honor no because if you preclusion had all these cases that were cited and most not all but a lot of the cases that were cited here dealt with situations outside of this proclaim it and paternalistic if you will veterans and these remit faces it seems like you're arguing your position here would would limit it to almost no circumstances whatsoever because it seems precisely the kind of case where you would  precedent and scott so that if you've got this procedural issue all right that can be subject to occlusion discusses the legal issue idea what ms dickens has here is not a legal issue mean do you do you not see distinction between this case and those when i mean i don't want to get into it too much but it seems like there the legal argument about the effective date was preserved all along and the only thing that was added or at least hat the veterans made a different legal error than the legal layer if you identified on the first five i thought i think i'm getting to to your honest distinction it's just that's not the way this is practically in fractious situation and you argued error in the board's decision and that it remained for various reasons and then on the appeal second appeal for the first time you said that that our road decision contains some other legal error that had never identified before for the for the first time to the veterans court that time around and i can and that's what i think is confusing about this case is that the way that the veterans court look at it and the way of years looking at it is this was well go you just brought this up now but that's really not the way to look at it in this context because there was a break here and then you get a fresh new board decision right in this context it's fresh and the bit about the us has to comply under seventy one of four and with all of its legal obligations this isn't something like in scott where the veteran had to articulate that he wanted to hear that was in scott the veteran doesn't have to do anything here the burner has to comply with its regulatory and statutory duties and so it's not but you're from this make an interesting point that when a board decision is vacated you know that you're starting all over simply and doesn't the v a have an obligation to do all the sales and the only thing that should be precluded is when the fails to take an affirmative step that he or she is required to do i first of all i don't think that i've read the decision as being bake it here i read the decision as having finally decided lack of evidence to support the combat status and that the really man was not was and when you read the j m r it recognizes itself that the two fourteen is missing and nobody has it so th is actually well there was a reasons and bases there because the word doesn't explain what other evidence other than a d d two four team might have been available to support a finding of combat status so i don't believe that the in this case because as i recall the were says room and in accordance with j m r i don't think they even use the word vacant or in that alert so hypothetically though it does raise a different question with you if you can eliminate entirely the earlier round are we back to square one you know and i think that there's got to be some kind of recent illness of tool that's used by the factions court in reviewing for error what the board that the second time where the situation like this case say so you say this case has the order would take a tour and you know the start over presumption but you have twelve years of correspondence between the parties in which  generally with some discretion from raising with issues or on a second appeal that nobody has ever brought up before and so putting my claim and had out here should be shocking many people it seems like the first concern is from from these cases and i'm going back to carter as well are we in joining with the secretary and his joint re mance precluding ourselves from raising certain issues i think the answer to that is not necessarily no because two reasons you can obviously bozeman and carter you had your j m r which said whatever happens that it's wide open plus you have the existing precedent from the veterans court which says the same thing not think because had she raised the issue as weak of an issue as it was the porch of said something in response to it right and and so had she done so and not said anything that actions court might have simply said no they erred but it was harmless given the record but i do think that would have provided a basis for the actual court to say something about the failure of the board to do it here obviously she had the opportunity to do so didn't take advantage of it and we think this was all for on scott because however you slice it scott involved the failure to recognize that he had requested a hearing which the court turned procedural which effectively i don't see a difference between challenging the denial of the request to have a hearing and something about the hearing that actually took place are still cancer but what the court that no i don't think when you send it back i think that gets that gets to the same problem you have with respect issue preclu this really is an issue this is a challenge that hadn't been raised before i and i think it's subject to the same analysis that the court performed and scott that you're saying even if this is  context of case that's been ongoing that what they're trying to do here is to undo that decision and that found that he had established his combat status so that's th aspect of the decision that's being challenged frankly if you really want to parse the history of the case one could argue that the existence or whoever had a duty to fourteen wasn't even at issue anywhere the original board hearing was really all about i mean they all agree the parties all agree throughout that they did it for a few fourteen nobody has so the questions are raised and what can we find in lieu of the missing d d two fourteen and that's what the court dealt with the first time so the dissatisfaction of the claimant which the secretary conceded probably could have been better analyzed so that was what the remain was about and then after that and despite the fact that this procedural challenge could have been raised somehow th fourteen american asli resurfaces issue part from revisiting her no now in fact if anybody were to find a d d two fourteen because it's a government document i think she probably has arguments about the fact that they under three point one five six see to the original claim the problem here is i think that a lot of that concern stems from the fact that at all stages people describe the missing to get to fourteen as presumed destroyed by the one hundred seventy three national person not going to reconcile or i mean i think it's clear that it was just people's way of describing it because it's missing they couldn't find it the national personnel people don't have it that that's how they describe the effects of the nine hundred seventy three fire so you know i'm totally speculating here about why the issues still hanging around but the bottom line is you know mr dickens told them or a judge at the very hearing and followed up the next day with a letter saying if you haven't sent it to me so there can't be any ar honour's looking at that the language of the joint motion for partial remain may help and i'm hoping to help answer judge chooses concerns here and talk about how this fits and i guess we both  government records giving her the heads up of where the board of veterans appeals was going here it is their duty and to try to put the cart before the horse and have counsel or an unrepresented person try to push see every reason that the of the relevant law under seventy one zero four and it didn't do that here because it didn't comply with its legal duty under three point one three it even said that in its decision and for some reason said that ms dickens had to affirmative