don't forget to return those stick on air word made improper credibility findings and the court said we don't agree and that's what i mean you know i'm sure you're well aware of our limited standard or free feel i have here and it's it strikes me and can push back if you wish that this is really an assessment or an evaluation of forward got it rock and put too much weight on this and wait on that i mean as you well know we don't have jurisdiction to be in that so is your argument somehow that because here client there are questions about his competency that that gives us the jurisdiction to review and reevaluating the board's findings factual findings that's correct or are we so we supposed to do with that so we're supposed to re evaluate all the factual findings with the assumption that he was incompetent and what do we then do to exclude all of his testimony what do we do with the facts we want how can we do that with the facts and to what would you have a stew even if we could your honor it's our contention that if someone is determined to be incompetent by the via for the v a to take affirmative actions to question that his memory which weighs against a finding that his recent assertions made pursuant to the current claim should be given value over the various more contemporaneous in service and post service histories of our contention is that when they start picking up the references to the post service histories they are picking up that entire period of time when he was incompetent the board went on to say not only may the veterans memory be less than reliable including with the passage  on his testimony it wasn't his testimony at the board the decision was that they relied on statements that he either made or didn't make or things that he did or didn't do during the period of incompetency the question is not about his testimony at the or the question is that they had a negative view of his credibility based on all of the determinations that they made against him during that twenty six your period of incompetency well what when they say first came up with the story that's after the incompetency sec right there is some indication that they think that he may have come up with it starting in the two thousand and five and two thousand and eight timeframe when he allegedly first said something about this and that is during the period of incompetence you know we would question that whole reference because the position that we have asserted is if you're going to use everything that he said or didn't say or did or didn't do during this period of  medical record there is not a reference to that part of the medical record that is favorable to mr rice they diminish and don't just don't discuss a lot of that but to get to your specific point your honor if you have someone who is inco and we have said that that person is someone who is disadvantaged in the system and we have to give that person extraordinary special protections how do we go about doing that you could make a bright line test and say that any efforts to challenge the credibility of an incompetent who is known to be such by the day would be inappropriate or you can take a step back and simply say we're going to say that there's something about challenging his credibility that is not appropriate and the question is how many of those things are appropriate could you get into a sliding scale you could say for example will allow for things that are challenges to their credibility and that's ok from a due process standpoint but we want to allow it now our position would be that that gets into an arbitrary waiting when you're dealing with someone who's incompetent and you're not getting that person any extraordinary protections because of the end competency so it's better to have simply entirely ignoring his testimony no i'm not suggesting that you're i am suggesting that you shouldn't be making negative determinations about his testimony if you're going to give him any additional protections and he's incompetent then you have to say that you have to believe what he says or not believe it but don't attack his credibility you can say i'm not going to believe it because of some other reason but if you say i'm not going to believe it because i don't believe he's credible and you're saying that during his period of incompetency you have in essence denied him due process well what i'm looking at the four defendants and i'm trying to find where they rested in large part entirely or in some part on the credibility as opposed to all these medical records so you saying the medical records come out because they were based if they were based on an examination and he was incompetent during the examination and i guess i'm not following i mean you keep on saying you can't rely on anything to do with his credibility but what about the rest of the stuff the rest of the stuff certainly stays in your are looking to give you the problem that we have taken issue with we have t asserted that all of their view of this medical evidence and testimony is infused with their view of his credibility they're not insert inseparable they well i know you've taken that position but can you point us to here so and you're not testifying obviously so can you show us point as to what you're talking about in terms of the ports reliance on that  when i set out on page fifteen of the reply brief the beginnings of the negative credibility incrimination that the board made and that also continues to be paid sixteen and references especially it and that forty nine which was my brief before the court of appeals for veterans five and there are at least eighteen circumstances listed beginning on page fifteen of the reply brief where the  made negative credibility determinations that impact that held a few what had happened medically before our position is that before you get into the medical determination if you're dealing with ed does it become competent again he became competent again in two thousand and ten year old ok and i am sorry that essence of your argument is that when he said i don't remember w it can't be weighed against him saying i have a specific recollection now because now he's competent correct doesn't corbier argument is it not it isn't in essence that their take if they're taking information during the period of the competency and they are using it to negatively determine whether that he is credible whether it's because of information after his competency has been ended and competency has been ended or otherwise if they are using the information from that period of incompetency and they're doing so in a negative way they did i can do process but there's a lot of other evidence that they have in addition to that they caught him they have a lot of medical records as well and that's what you're that had occurred more than forty years earlier was less credible than the multiple contemporaneous specific clinical findings are you said that your opposing counsel but you're not answering my question my question is very simple would you agree that as a matter of law the board cannot wait a statement made by someone who is incompetent at all against a later statement made when that person is competent to contrast them and say we disbelieve you because you have contrary statements that's a question of evidence and is a question of law about  i think it's a nuanced factual question i think that it is that the word statutory obligation to weigh all of the evidence in the record and admittedly on the statement made while he did it was incompetent a eschewing simply that limited question as a matter of law may the board use as evidence statements made by someone who is incompetent to refute statements made when that person later is cal counsel's argument even  any other questions the negative credibility and determination so infused the board's decision and the court's decision you can't you said that before you sat down and now you're saying it again and i keep looking at the board decision and you say that infused it but there's just paragraph after paragraph citing the medical record in this case now your assumption is that it you lose everything the boy did but i don't understand how when we can give you that or two we can do anything about it when it's not here in black and white and it's your view that if used everything but there's not an indication that it did there are we believe that we didn't in our place that we've indicated and well i know what you're saying but i'm looking at the so you're making you're drawing a conclusion that when the board recites paragraph after paragraph concerning the medical records and the testimony of positions that that was the board's crediting that was infused by the credibility and i don't know how we're supposed to get to that especially given that they separately discuss but they also don't discuss the positive evidence so for example we know that there was a cat scan of mr rice after that and that's  way and they say the weight of the evidence at that later and is outweighed by the evidence at the beginning where you had medical records showing what was done what's wrong with that well there's two things number one where they when you said unplug that incompetency period the difficulty is that that should have a bump on the scale because if i'm as you unplugged it but if you your unplugging it you're saying that he had no incompetence at all that would be one thing but we can't ignore the fact that he had a twenty six year period of incompetence that now own we're saying that none knee surgery and that he had that it was a bleed or related to the knee surgery and the reality was he never had knee surgery so you have to which means it was never a leader and they then said throughout the record well you know because he couldn't be believed he first made his claim for a hernia that he was told he had and yet ninth grade education and didn't know any better we're going to just take into account that he really didn't know what he said and didn't know what he was complaining of but the