aggravation from let me tell you with my difficulty a feature of a chance to respond to it if you can and that is that let's assume for a moment that we all agreed that there was a problem in terms of what standard the board articulated but the and while your arguments may be powerful with respect to its application of that standard how do we have jurisdiction if that's the issue before us and that would be the whole lot back issue i don't think that what the veterans course did here was in fact applying the law to the facts so well as it is posed to be interpreted now they didn't get a whole lot of discussion to talk about but if you look at what they actually said and some page that were bugs the presumption of soundness i understand is that they're relying on the hospital records that said that there was no military aggravation so i can appreciate that you might say that's not sufficient to setting a per se rule that happens alone no matter what else what's the per se rule of what it would and what that anything like you have a statement that if you have a statement that says regardless of any other and regardless of whether that statement is supported explained or anything if you find that statement in the record that is enough to provide clear and unmistakable evidence that's an interpretation of what the standard requires it says you don't have to look at any other evidence you don't have to look at the factual predicates for that statement nothing so it's really this isn't the same sort of situation as if veterans court had said ok we have this statement by a doctor and we have all this other evidence but we have determined for whatever reason that the one outweighs the other never be looking at the evidence and applying the legal standard to it here they're not doing that they're interpreting the standard to mean that that one sentence no matter what other evidence appears in the record is enough all by evidence or if the other evidence supported it perhaps but courts are saying they don't have to look beyond that standard clear and unmistakable has been interpreted to mean fun datable and if it's a rather odd interpretation of that standard to say we can take one sentence we don't have to analyze it we don't have to look at it from the other side the bin laden was probably more well there was the fact that his hearing tests when he entered service showed him with hearing of twenty twenty there's the fact that there is no evidence in the record indicating that he had any problems whatsoever with hearing during that since birth and it can still be aggravated by service so when we're talking about the aggravation from we really have to look at what was his condition when he entered service and then what happened d you think that there's an anomaly or that there's evidence that shows that he had hearing problems or hearing loss serious during last prior to entering the service and then when he had that examination and statements as being conclusive evidence regardless however that route even if he does have a hearing some sort of hearing visibility his statement that i had trouble hearing before service it seems to me that it least the board would have to weigh that against the apparently objective test that he was given a hearing test when he entered service cannot and matthew another sort of a different question which for clothes from getting some suit that says ten percent ten percent for that tonight claim that's correct that's correct now oddly enough the veterans court found that this statement no aggravation of service and no progression was not adequate to rebut the presumption of sound that's when it came to the tonight only when it came to this hearing this ability as i said neither the board nor the court made any attempt to look at the only objective medical evidence in the right and that objective medical evidence in the record i mean there is a presumption of regularity that the military did its job when they filled out those forms and accepted him into service and said he had twenty twenty here then later on by the time he goes something happened in june and he wound up in a hearing disability program for the next two months when he got there they tested this hearing as one over twenty and then during the time he was there progressed to zero over twenty the incidents that happened that you talked about was this vastly says that of a gun misfire blew up on the firing on the firing range but there's no record of that not to a statement that there was a firing range and said well if you turn it around a third way which is you don't have a basis for a valuation how they're way the abbott is right i mean you're right they that poses different questions but at the end of the day we right and so that we know it's not what we're saying here and you know what they did in that regard exactly and that's what we're saying is they the court appears to have made a per se brule that that one sentence by itself satisfies the clear and unmistakable standards without any effort or any attempt or any requirement to look at any of the other areas and what we're saying is that could be applied in any case we're gargles of the loss claim that seems to suggest that the veterans support what the contemplated any kind of per se rule rather the veterans court was applying the standard to the facts of this case and concluded that there was sufficient evidence to rebut or to demonstrate clear and  as your honor pointed out judge pro that's immaterial because it doesn't matter what the board said the bedfords court found whatever the error was whether it was mis citing eleven fifty three or whether it was applying eleven fifty three and requiring mr that the evidence is that when he first emitted his claim he said i had had hearing loss in first hearing difficulty began at birth is what he said on his claim and that when he went to the hospital the doctor who was treating him said that he had had defective hearing as long as he can remember he didn't finish high school because of his hearing and that there was no progression of the deafness that the progression of defective hearing that the doctor denoted with static suggesting is unchanged that all of this together but that presumption so that he actually was not sound when he came in to service that presumption been rebutted by all of this evidence and as the court just come out of the hospital after being having sure surgery and you ask them so hurry doing joe and joe will say well i feel fine i mean how do these type of statements overcome a medical opinion of first of all your honor this is not a cue case it's it's a cave open on direct appeal where mr asprey submitted a new and material evidence to reopen an earlier denied claims that had become final his new evidence was his assertion that there was this explosion this gunshot that damaged his hearing so that that's the procedure posture of the case as to the larger point all of that is weighing up the evidence and yes the board can look to what the veteran said about his own progression and that can counteract the medical evidence in fact here we have no objective medical evidence meaning no tests of his hearing prior service what we have is when he went in to see a doctor and the doctors tried to treat him to try to improve his hearing presumably he tells them the doctors the truth and he told the doctor that he had had hearing loss since he was born he didn't finish high school because of a hearing loss and the doctor believes that and tried to improve his hearing through various methods that this report on page joint appendix page forty two written by his doctor when he left the hospital notes that he denied amber and the doctor presumably believe that and the doctor found based on that and all the medical testing and everything that had been done for the months that he was in the hospital the doctor concluded that there was no progression of the us a new military aggravation that that seems to be clear and unmistakable evidence that there was no military aggravation but whether whether this court thinks so or whether i think so is not really important because the board thought so understand the other side's argument the inspectors diction correct i understood that they alter your honor in harris the west this court said that the statute says nothing about the kind of evidence that can be used to rebut the presumption so to the degree that mr x rays arguing that there's certain kinds of evidence that can't be included this court's already rejected that conclusion by saying that eleven eleven says nothing about the type of evidence that can be human just one point i'd like to make is we're not arguing at all that there are only some sorts of evidence that can and that others can't so you know to the extent that the secretary is arguing that that's not argument at all we're simply arguing that you can't simply set a rule that says if there is one statement that says we don't look beyond that and in terms of you know of these and we disagree here o not well it would be so yes perhaps if the court had said there's all this evidence but we say in this case this is the answer that would have been at applying the clear and unmistakable standard to the evidence in the case here they don't do that in fact you'll notice the course they never even talks about these medical records particularly like the finding when he entered service of having twenty twenty hearing the fact that even in these hospital records they say that his hearing deteriorated from the time he came to board the hospital to the time he was discharged the court doesn't even mention those so we're having to make an clear and unmistakable evidence and that was all they had to look at and that's all they talked about and if you know as i said that's that's setting a person a rule and that would apply to any case in which that sentence was made anywhere in the record and at times is quite commonly found in med board proceedings and so forth that's not it's not a rare and unique situation so under there yes we've got a per se rule that if there is that statement no matter whether supported matter if there's any other evidence or anything that's enough and that's enough to satisfy the clear and unmistakable evidence standard it's questionable whether that would even satisfy a preponderance of the evidence standard if you just rely on one sentence and don't even look at the rest of the evidence this standard is completely contrary to the entire veterans law scheme to simply say