widow of the veteran cornelius cross the issue in this case is whether the lower court erred by requiring it in thompson and veteran to submit testimonial proof of exactly how his surgeon failed to advise him and provide informed consent for surgery in order to adjudicate a claim arising under thirty eight u s c eleven fifty one and say he was incompetent there was no finding that he was incompetent well that's exactly the problem here are the the lower the board and the lower court never addressed that issue where you never raised that you well we raised the issue of lack of informed consent your honor but you didn't raise the issue of whether he was com of four share that basically states that even though it was a particular argument may not have been raised the issue is not weighed as long as the court has jurisdiction over the issue and this court does have jurisdiction over the issue because in order to arrive at their findings that a veteran had the burden of proof to show testimonial proof of a lack of informed consent before his plan could be adjudicated a lower court basically read in to the statute and the implementing regulation that requirement which is not there so although the court didn't specifically interpret eleven fifty one or the implementing regulations it imply italy interpreted those provisions by adding this requirement and interpret it to say something it doesn't say so the court does have argument now your it it your argument that it's in me a had misinterpreted it statute because it had an independent obligation to assess whether the consent was informed a certainly had an independent obligation to review the consent form and to determine in this case whether informed consent was provided and in the case of a veteran who has dementia as  as relying on by the board and the court below to prove to show that this surgery did not cause dementia they relied on evidence to say that he had preexisting dementia as a lower court is going to rely and evidence of preexisting dementia to deny proximate cause ation and they have an independent duty to apply the statutes and regulations that apply for the case they can't ignore that very same evidence on the issue of whether a veteran was with issue at all but it's fairly clear if you look at the medical evidence that is a record there's a progress note in august of ninety six that that in case that the veteran had trouble understanding troubles talking memory loss and there was a question of whether he had a prior stroke in november of ninety six he there is another record that indicates that he met the criteria for dementia but it's not until after the second surgery in one nine hundred ninety eight the one issue in this case where the records show that he had advanced dementia and can only speak in very short sentences and the problem here is who can actually listen to the risks and benefits of the procedure the alternatives and determine for the veteran whether or not he's willing to consent to the procedure that was not done in this case even if you get past the question of informed consent don't you have a whole host of other problems in terms of establishing your claim i don't believe so your honor  that a complied with its regulations on a form consent then that would require remit back to the lower court and back to the b v a to determine in the first instance whether or not they complied with their regulations and i would submit that because this is an approved benefits claim and the evidence is frozen that at the time of the veterans death really only one thing they can look to two things that they can look to to make that determination one is the medical evidence showing preexisting dementia at the time of the one nine hundred ninety eight surgery and two is the consent form itself which is signed by the veteran it's not signed by a surrogate and there just simply is no finding in the record that the veteran was confidence to provide informed consent at the time of the nine hundred ninety eight surgery november ninety six least a year and a half before the surgery at issue in this case is the absence of any evidence of that that there was any problem with the informed consent discussion there's no finding it in the record at the time that they gave an order not observation that discussed is a the ability to hear for right right but that doesn't that that's the only indication that that is relevant to is a he also said his family was be his his family may have been there prior immediately prior to surgery and the veteran may not have had any questions immediately prior to surgery during pre op areas time but when they signed  fine there's aggravation but there's no evidence negative right now but see that's there's two claims on our lives if you want you can go you can establish it by trying to show that there was negligent care and treatment or that there was a lack of informed consent so so we are alleging that there was no showing that it started your problem is that you focus on the first prong so you were trying to show that he was much worse after the surgery and not that than before the surgery and then you get to the four informed consent prong and now you're saying well really he was pretty bad before the surgery well really what what i'm our argument is that it needed to be addressed by the v a in the lower court even if i didn't raise the argument specifically the issue was before the lower ranjan or you can show a failure under any line that it's longer you cite to the regulation every single prong is before the board in the court know what i'm saying your honor is if we raise the issue of lack of informed consent which we clearly of those regulations requires in every case that the v a determines whether or not they complied with their own regulations and they did not do that in this case because we had a veteran with dementia no finding was made at the time he could sign the consent form that whether or not he was competent to sign it there's no evidence that they made that determination the lower court should have seen that he corrected the issue of even if we agree with you that there is an independent obligation by the v a to us to assess the propriety of the informed consent is it possible to say that that any failure in that car that regard was harmless because the medical records a stablished that that though we had some speech problems might have had some aphasia problem that he understood what was going on around him and he was capable of giving that up for consent well i don't know how the court could reach that conclusion i understand it's questions about the the questioning immediately prior to surgery but when the time he was he was given his informed consent three weeks earlier there's just no finding no medical conclusion by the primary care physician or the surgeon who was going to perform the surgery as to whether or not he was competent to give his informed consent all we have a fact issue fact because their charge for that response thank you will give you two minutes for  as she read the informed consent issue in terms of whether or not there was an adequate disclosure that's entirely separate issue than whether the veteran had to pass the expense because he required an independent factual determination as to the veterans state of mind by failing to raise that issue think connection with their analysis of the causation is that right yes park able to communicate his health care decisions conflicting record on whether he was competent to consent before the operation i don't believe that there's any evidence the only piece of information he points to indicate that the patient understood and was able to communicate  they note that that he had several incidents of getting lost and difficulty putting things together dating all the way back to one thousand nine hundred four and that is a system that had symptoms had been for greste there from that point forward so we know that at least for four say that if you look on page thirty eight so despite evidence of four years of cognitive problems and the board relying on prior cognitive problems to conclude that that his post surgery problems were not all paused by concerned that's what looks to me counsel like what we're discussing is a question of what within the law constitutes dementia at a level sufficient to make or not make consent to an me let me ask you about that about the regulation that that doesn't mean it took me a while to completely understand what the what was being argued here but as i understand it what what he's saying is that the baby a has an independent legations to determine that the consent was informed and it seems like words were sort of after the fact looking back to see whether or not they could have made that determination had they undertaken to do so and mike my question to you would is under the regulations interpreted properly how is the v a supposed to make that turn under the regulations or v a does not have an obligation to determine the capacity conse set if they're not required to do that but i think that's the whole point of having the informed consent document and having these are pre operative assessment is precisely to document that section of seventeen point three two provides a stand of the judge wallach asked a nurse can't make this determination it's gotta be a physician it's got to be a physician with primary decision making  practitioners the primary responsibility for the patient has to determine that the patient whether the patient lacks decision making capacity well that went on forty eight in the records that was signed by a physician  even if we were one man further analysis of this what other evidence would they have other than the same documents that say no cognitive very you don't end up in the same place no do you see the same documents don't say the determination of whether somebody is competent to give informed consent has to be done when again for consent discussion is either before or at the time that the informed consent discussion is taking place that took place three weeks before the at the evidence of this pre op nursing assessment nurses is not competent to say whether somebody is suffering from dementia or not only a doctor is and the doctor that did address the issue before this surgery is the doctor who signed the progress note on eleven six ninety six page forty six of the record and he said that the that turned his medical assessment was at the veteran suffered