midseason or in this case is about what it means for the secretary to make the reasonable efforts he is but again going back to judge laura's question is that i there wasn't a finding of utility in this case but again even if there was even assuming that there was a finding of utility or a finding if utility based on a failure to consider whether or not these effort on reasonable that's a fact question right or are you the i agree with you there were unreasonable employees saying this is all i can find once doesn't seem like enough to me i don't get to make that decision i don't have that review was already congress didn't see fit at the bottom of page six that on page seven that the author of the memorandum that's the v a m c employee that said they couldn't find anything else the author of the memorandum noted that these records were unavailable for you and  court you save maybe adopt it in reviewing the board and the third is whether under the correct legal standard findings were  improper or incorrect in applying that standard and the problem is the last piece of it we can review the second piece the legal standard the veterans court appears to have articulated here and hear it quote at the relevant standards it focused on what i think maybe we're actually in agreement on is that futility or some verbal formulation that amounts to futility is the right legal standard and what seems for not having laid out their reasoning because the a p a we choir's that ass as interpret it but we don't have a an obligation to explain like that here that when it writes opinions i don't know that we would get to enforce that but if we did i think we just said is the problem was that as applied here that rule really shouldn't have justified  roger this court needs somebody to be able to review the veteran's court's legal determination and in this court and in this case the veteran sports one sentence statement that mr bonner failed to persuade the court that he deserved deserved service connection is respectfully insufficient it doesn't give this court the ability to review the court's legal determination and make a brief comment on a second finding document is i believe is two thousand and fourteen prior counsel i raised the issue for the first time in two thousand and fourteen before the veterans  capital anyway that talks about their efforts setting records from either private and c or from a government agency or department and both those subsections contain a f exception that when who is the person who decides because i know it's not me but who is the person who decides whether or not reasonable efforts were undertaken to obtain medical records who did was ask one time for the records and suppose that they didn't even get a little note that said that's all i can find suppose they just got some records back but the veterans and then i know i've got records going back to one nine hundred seventy five i've had this kidney condition all along to many v a doctors that certainly would have been reasonable behavior that's not what happened this case but i would not be reasonable behavior whose duty is it to make that decision and also to make the decision of whether it was futile isn't that supposed to happen at the or level the v a makes the decision because they're the ones making the request and getting the end fell so shouldn't they make a decision about whether or not reasonable efforts were undertaken and whether or not it would be well show me where that a please show me because what i just understood you to say is yes the board in the first instance should decide it with a reasonable efforts we've made and be whether it be futile for there to be additional efforts made so where did the board do that you're i'd like t clarify my position is that the v a makes that determination here the v a had initially a formal finding of un availability where show me where the records in the record this is at appendix fourteen thirty these records including the efforts directed to the medical center itself the note that came back and there's also on the next page of the appendix four hundred thirty seven there's a summary of the phone call of the veteran where it asks whether  received treatment elsewhere he indicated that he did not that this was the only medical center but he received treatment based on that the agency made the determination that the records were unavailable the board then this is on t that the note the request went to the v a it described the steps that i wanted the medical center to take the medical center did as you're on their points out provide records and this handwritten note on top that says this is  so so what happens is this it so this was the request and the return from the first and only request that ever took place is that right that says yes character and so this is it the only thing that ever happened was there was this request and and what records were unavailable you have one person who said and a hammer and a saw like a fight we have no idea what that person actually did before they decided this is all they could find and no warehouses or other sites were consulted as far as we know in this record so how exactly does the v a make a decision and at this point that the records are unavailable based on one guy's handwritten note that this is all i can find when we have no clue what that person did or didn't do to look for the records based on the presumption of regularity that the government employee performed the steps and there's nothing in the record and to indicate otherwise well but the statute actually has two different things right make all reasonable efforts when the records are mounting by the government and the same statute says and you have to request stuff at least twice if they're not maintained by the government right now that's not exactly correct dr wright says you have to make a follow up request unless you know unless the first request indicates that further follow up would be futile so even you because i'm not at all happy with the idea that they rubber stamped a determination was futile based on no follow up no actual verbal communications with the individual who said this is all i can find and just a handwritten archives and if he said that he said this is all i can find he says this is everything i could find and he provided records under the presumption of regularity if you you know we presume he was doing his job he would have provided information as to where they were transferred believe there's anything else out there your honor the rule i think is intended to ensure that the v a gets a request response back from the agents in the can see this in that the legislative history with respect to the prior record requests it's the follow up as i clearly read the statute as hoping that our government will do a better job of ascertaining the records of our medical the make medical medical records of our veterans i actually think when they say to make all reasonable efforts it is that they were asked to do more than what they do with the private people why because our government should do more for these people especially when the only care they received was from the for a minute self probably because this guy couldn't afford to go to a private doctor and he had v a medical insurance so i think the way i read the statute is they wanted more out of the government because you know what we owe it to them because they're veterans and so you didn't even make two requests and then you jumped to a conclusion that it was futile because somebody put a hand written note on it i mean i feel like my nine year old could have done this twenty five years or twenty two years before the nine hundred seventy five there's any of the medical specific analysis of the condition and its origin and what not later for the first time because there are and they actually say because there are no service records from earlier no medical record isn't really or how that made a difference and and disconnected the disease in an a long period of time from service so i would think your interjection around it would have test for the symptoms experience or military service is not competent to link this current disability diagnosed fifty years after separation from active duty to the prosthetist if there were service was not in service during that time from the point i'm making is that the board stressed how long there was between his service and the development of this disease and that was clearly a factor that mattered t in their decision thinking if those medical records exist and demonstrated that he actually has this disease thirty years all the earth and it wasn't wrong for twenty years just on but i don't know i'm not a doctor maybe it would make a difference sure but the other point on that your honor is that their medical records from one thousand nine hundred seven in two thousand and three showing that his levels with respect to the this disease were normal as his tests i think only showed this disease in two thousand and three so that we do have available showed that he did not have an indication of what you showed me in the record where the v a made a decision if utility absolutely i see that they made that decision whether i like it or not they made that decision board about futility then we have the veterans court what i feel like pretty heavily relying on this notion of futility does the veterans court get to do that when the board itself didn't make its decision on that basis the work so that no further  does not write expressly mention of the veterans court relies on and tell me i know i can't touch fact i think i get that but tell me the board did not in my view or anywhere in it make a finding either of an availability or a futility they just sa reasonable efforts were made that's all they say so if that's my view of the board opinion is it appropriate from a legal standpoint for the veterans court to make in fact findings in the first instance of futility even if the record otherwise made a sexual finding i don't know to what extent it would have to explicitly hollowed out in its opinion the court is entitled to rely on the summer before the agency such as the formal finding of on availability and i know that i'm over my time you're on