what it was intended to be raised your honor if it was not perceived by your honor as being race that is inconsistent with the intent a lot of what we ask the court to where even the record is that you know standard ra correct what mr swift argue he argued clearly erroneous must be set aside as an awfully right but as it related to the issues that were presented below which were that the evidence was inadequate to support the rating and that the board failed to provide an adequate statement of reasons and bases for why it did not assign a seventy percent rating that was the clearly erroneous standard what the veterans court agreed with the secretary that the remain and was to be reviewed under the clearly it's clearly erroneous standard that which deals with the v a s duties to assist in this context the lower court interpreted the duty to assist under fifty one of the three capital a to be satisfied if the medical opinion simply said that the examiner could not provide an opinion without resort to speculation and that nothing more is required for this interpretation they rely upon their decision in chota to the extent the chota interpreted fifty one of the three to limit the retrospective medical opinion as being satisfied for nothing more than a declaration that an opinion could not be returned without resorting to serve speculation is a misinterpretation opinion is necessary to substantiate the claim the board found in two thousand and ten that it was necessary to substantiate mister twist claim for a rating more than fifty percent that he be given a  retrospective medical opinion he was not given a retrospective medical opinion because the examiner came back and said i can't give you that opinion without resorting to speculation that veterans court terms of the organ violate d previous reunion order and it didn't air in its review of the duty to assist them intensely factual no your honor i do not believe so because the examination in expressly said that we're giving you a non opinion we are not giving you the opinion that was necessary to substantiate the claim to accept that and to say as the veterans court did that nothing further is required when that is the response by the v a s examiner is inconsistent with the v a s duty to assist as a matter of law or we understand one of the exam to do wrong he said he looked at the room looked at the hospital records medical records and said you can find that the airplane was established based on those records right no your honor what she said was is that she could not provide a retrospective medical opinion without resorting to speculation that's essentially saying that the that the medical records no showing what the veterans on each i beg to differ your honor because the  specific remained was to do a retrospective medical opinion to look back at those records and offer an opinion as to the severity of this condition and she did not do that she said that determining what that condition was and when she did it she limited it to the question of a total rating at one hundred percent there is an interim rating of seventy percent which was not considered a different point what you're saying is that she didn't july two thousand and two examination mr swift that assigned a forty five a gasp of forty five would not warrant a rating of seventy percent and extra schedule rating from the effective date of march of two thousand and four the adequacy of that examination the veterans court relied upon interpretation of the statute for the d a s duty to assist that nothing more is required when the examiner says i cannot arrive at a opinion without resorting to speculation and is such a declaration consistent with i'm confused that it seems to me that two separate origins i understand one of the which is what we are on appeal today for said that the examination that was written from up was provided was adequate and didn't require more once the examiner simply declared that she was unable to provide an opinion without resorting to speculation that the d a s duty to assist requires that the v a at least make an attempt to get an additional opinion to confirm whether or not that does in fact exhaust the reasonable expectation that assistance will be upheld if that's the interpretation of the d a s duty to assist then the v a simply has to have an examiner say i can do nothing and suggest that not you know seventy percent rating or a total rating are not warranted for the particular time period that we're talking about and we did articulate a little bit further in in our briefs to why the court could read the medical opinion to to include a consideration of whether seventy percent was was warranted but i think the court's concerns are correct that that was not an argument that was made below and there was  interpretation of fifty one of three a by the veterans court below is simply an examination of the error that was raised by mr swift before the venice court and that here which is on page ninety of the joint appendix misters was veteran court briefs simply said was his medical examination adequate and the board found that that the that the duty to assist with complied with and that there was substantial compliance of the arena in order and those factual conclusions were viewed by the veteran sport under a clearly erroneous standard which is plainly the correct standard to have to apply in that situation and beyond that there's simply no legal issue that was that was raised by  sixty one apparently a rule of law that would require the veterans court for them sorry the v a to obtain multiple opinions to confirm the opinion that was required by the order but it did come from the board found that simply saying the evidence that we have here simply does not substantiate i would be guessing if i were to say anything above the fifty percent that was already awarded that veterans medical records to obtain any records and i think it's what really hasn't been emphasized here which is perhaps one of the reasons why this remained was requested in the first place was because mr swift had identify potential workers compensation was the remand order page fifty one and that the two asks please obtain a retrospective medical opinion after reviewing the claims file an appropriate examiner should suppose there's certainly no prohibit sions for for doing so but what is set out in the reunion order is to ask mr swift for any additional evidence that is not currently of record to assist him in obtaining those records and then to develop a to obtain a retrospective medical opinion all those three things were done with did not identify any additional evidence that he wanted the v a to consider award and the medical and medical examiner simply concluded that the on that would be speculative to to guess as to what the condition of his social and work impairment would be based on his record normally psychologist is asked to render an opinion based upon the evidence of record on a specific issue in this case with a totally an employer role during this time period or was entitled anything more than fifty percent rating  examination might also be appropriate in some circumstances but in this case we're talking about a retrospective opinion about what his condition was during a prior time period  the there was a determination that that could be based upon the prior evidence and any other evidence of mr swift wanted to obtain and and that the board found was sufficient to satisfy to comply with the duty to assist as well as with the terms of the reunion  order the court has no further questions we respectfully request that the court either police of course if the court would direct its attention to the two thousand and ten dream and or to a fifty at the bottom of that page continuing on to the top of the next page before the remand instructions are delivered by the he relies upon the veterans decision to introduce and cite specifically the parents that a call from cho to the holding that the duty to assist may include the development of medical evidence through a retrospective medical opinion where there is a lack of medical evidence abt the time being raided that's all that that the v a obtained from this medical opinion that there was a lack of evidence in that timeframe and without resorting to speculation the examiner could not offer an opinion but that's precisely why the interview of the veteran was critical and that it was necessary and showed it is predicated on the fact that when the v a as in this case has six years worth of time in which there isn't a development of the record to show the severity of the condition that the v a will go back to the veteran as the primary source for the severity of the conditions and interview the veteran show to specifically talk about that process that was not the process that was involved in this  and examiner did when she did her examination and simply concluded that she couldn't address total and social impairment without resorting to speculation that's the only opinion that she offered she did not address the severity she made no effort to interview the veteran and for the d a to suggest that there are two different types of medical opinions further demonstrates the error in the interpretation of fifty one o three capital a because it's about a necessary medical opinion and what was the necessary medical opinion in this case it was the retrospective medical opinion for the time period from one thousand nine hundred eighty to two thousand and four