carrying on that half of this before joan rivers where they're on this case deals with the question of whether or not they be a regulation specifically three point one five six c two and be applied retroactively the veterans that's a fact finding over which we have no jurisdiction correct idea so the board felt this is a new claim over which we have no jurisdiction and the regulation says this is it can be applied when the former decision will be reconsider the board found as a matter of fact this is a new claim and we have no jurisdiction to review that conclusion and the regulation only applies to reconsideration of form or decision by its own words what is there for us to do in this case because what is what is to be reviewed upon reconsideration is mr reavis rivera's one nine hundred eighty client this has nothing to do with reviewing that subsequent claim in fact the subsequent claim should not have proceeded under the correct application of this regulation never made a motion to reconsider read when the nineteen claimed any it no he did not and this is a from a media regulation which we do not believe requires that requires the v a to take the affirmative responsibility when they as they did in this case receive supplemental service department records that had not been considered at the time of the v a s first this is nine hundred eighty claims of mr  and described that it came from his experiences in combat there is no record of a diagnosis having been made but i would direct the court's attention to the fact that this decision was made on march the seventh of hundred eighty and was disposed of by the v a on march the twenty seventh there is no indication that there was ever an examination of mister reavis rivera to determine whether he did or did not have that condition there is a reference in the decision that says that no v a examinations provided a diagnosis of mental disorder but there was no mental disorder examination conducted in this game is it reasonable to expect the v a to screen battalion records without any guidance from from the appellant to find evidence of in service stressors in one nine hundred eighty i believe it was your honor that there was no requirement in the regulation i mean service record formerly talking about four months of combat the the problem is is that that there still would not have been a diagnosis of p t s d but the diagnosis would be attend practices and procedures i see it as pages one fifty eight to one sixty and there in those pages they describe post traumatic stress disorder and it's specific relationship to combat now even if there was an examination that examination would have been required to deal with those requirements as specified in that provision now if the service medical records showing that he was in combat were not available to the examiner it would not have been possible for that agreement to have complied with that rule now i suppose there is a pending question as to whether or not that manual provision has any effect of law but certainly in one nine hundred eighty that was the way in which it was relied upon and that's why the government is included in the join defendants because that was the procedure for determining whether a person suffered from post traumatic stress disorder now there is as i say no indication that there was ever an examination conducted so we don't know whether or not these manual provisions were were not applied by the examiner because we have no examination but there was nothing in the record at that time but the point of three point one five six c is to trigger affording the veteran a new consideration of his original claim and the language of three point one five six c is that it will reconsider the original claim a claim that was decided without the benefit of relevant service department records these are clearly relevant service department records because they have i don't know whether your mistaken your honor but i believe that it was mistaken to have framed it that way the operation of three point one five six c does not relate to a new adjudication three point one weeks earlier affective day is for soft claim that he was awarded benefits for p t s d correct they are inextricably linked are they not they are here so once again it goes back to the affective day that is the context of this dispute as i understand it and that i'm still struggling with life three point one five six applies at all even if i give you the right for active application of the one that was in place at the time because it's talking about reconsideration of decisions and the court found these are two different claims in the original version of three point one five six see the relationship to effective date for an hour later or ward was not clear when the v a amended the regulations they separated it out into three specific subsections under subsection one it is  quote three point one five six c yes and emphasize this provision is not a flexible there were where there was no an administrative error because the records were not recently identified and it seems to me that you c if i left the court with that inference i apologize but the point was that that's what the provision calls for it i did not mean to concede or imply a concession that it would have been correctly applied now you say while this is a correct interpretation of three point one five sixty two it is correct as of the date it was published it and i'm sorry what i was trying to say it was is that that the established that a true mentally disordered exists and also quote that the disorder will be diagnosed in accordance with the american psychiatric association manual correct on young  effective date so on now given that given that what you're asking it appears to be that that v a searches his records without any where they should be going his is unit records how on earth could people well because you're that's precisely what the secretary said was the entire reason that he promulgated this regulation that regulation was created for a single objective to cure and administrative deficiencies when the v a did not in its original decision for sites leave that search the records they get all relevant service records and when they fail to get those relevant service records then the provisions of three point one five six c are of vailable to the veteran downstream at some later date when the records are produced and the v a receives them at that time the provisions of now three point one five six c one go into effect and require reconsideration because there was an administrative deficiency in the hav court found was not for application the court could have from on that basis alone what i mean if you look at see one it says notwithstanding any other section of this part and then it just proceeds on what the  supposed to do if he gets new information isn't that enough to just say that if there's any claim out there even if there hasn't been a motion for reconsideration of the that the regulation applies three point one five six c refers to a is which is muscle weakness in his neck what the veterans are parting with the aro did was liberally construe what appeared to be a claim focused on a physical ailment and found in that physical claim for  a nervous condition right that a nervous he mentioned earlier how he's always been a nervous person but but then he says that he has a delayed stress reaction a condition that also affects ex military members from the vietnam war you that you think that is properly interpreted as a nervous condition well the interpretation of his claim as is vested in the v a and so the court under seventy two ninety two d two should probably should not be looking beyond the factual findings of the board in the veteran court but if the court is going to look specifically at the claim that he filed it's very clear the connection between this delayed stress reaction and the physical ailment it is not characterized and i don't think the v a was wrong construing it  allege a post traumatic stress disorder type claim he says i'm always a nervous and anxious person and that language that that we're nervous is teased out of the claim and appears and the reading decision if a court looks at the diagnostic codes say he has to be diagnosed from nine services stressors and then go and see if there wasn't a stress and that's backwards i don't mean to imply that there has to be some non sort of stressor to support a p t s d diagnosis what i'm trying to i i'm afraid to be in a crowd those kinds of things they say looks like you have p t s d what kind of exposures did you have that's what you're saying in fact is not what i'm saying is d diagnosis depends not only on the stressor but as your honour's is mentioning an array of symptomatology that's consistent with the diagnosis and symptoms can overlap between different kinds of neuroses so when mystery bus rivera presented for a complete medical medical conclusion made by the medical professionals was that he had no cycle at psychiatric disorder at that time it was considered very very close in time to the time he felt his marks nine hundred eighty claimed so back to your honor's question i don't mean to imply that mr reavis rivera had to show that s d independent of his service in vietnam what i mean to say is when he presented for a complete medical exam in one thousand seventy nine and the medical professionals had no reason to diagnose him or suspected he had a psychiatric disorder there was no need to go to the second part of the analysis of the sta ex military members from the vietnam war hard for me to imagine that those doctors had no reason as you just said to diagnose him with p t s d according to this writer respectfully or are i think the aro did correctly and liberally that that language your honor comes from the court's decision a blue ball and as applied in the court's decision in kaiser so in order for c want to apply the later associated service records have to in some capacity remedy the defect in the original claim in order to trigger some kind of relief under c one so mr reavis are various later associated service records which were used to verify its stressor which the veterans court found court found he'd not identified with the two thousand and seven did not provide the diagnosis that was found to be feet to the answer that is yes one would hope that the board wouldn't make a factual finding like that in the face of what seems to be compelling evidence of an in service injury and if it did to the veterans court to correct a clear error of fact on appeal to veterans court but on appeal from the veterans court to this court seven hundred ninety two d two does restrict the court's ability to look at factual findings and if there's some dispute about whether that factual funding is correct or not that's precisely why seventy two ninety two to two prevents the court from applying law to this fact so in this for four months that they indicate that the potential for stressors would have been even stronger your honor raised a good question of earlier about whether there's any allegation that the v a should've provided a medical exam in the face of the allegation of delayed stress condition that sounds like you claim that this is not a claim and if it were to claim of be subject to a very high standard that mystery was there wouldn't be able to satisfy but it's conceded that they're not presenting that kind of argument the two thousand and seven even suggesting to me that if i even if no one brought it to my attention if i realize that the board was applying the wrong law well that was not in effect at the time and it was materially different from the law that ought to apply that i am somehow found regardless of when or if anyone brought it up that i am bound to continue to accept the wrong law on appeal your honor i don't have the right to tell a blow or try to be the one applied the wrong oh no no your honor i don't have that right now i'm saying you do have the right i'm not disagreeing with you ok so then what does it matter whether she likewise told them to apply the wrong law if i on the actual application of princess cruises so if the court gets beyond argument that the argument is waived applying princess cruises what we're saying is there is no retroactive the problem that mystery the survivor didn't seek to exercise his right to reconsideration until after regulation had changed and consequently there was no impairment of any vested right to reconsideration i just think from kline insisting from a few because in those cases the claimants who filed their original filed their request reconsideration and got service connection before the regulation probably like to focus on one matter your honor and that's the notion that the government has asserted here that the veteran or any veteran is required to exercise his right to reconsideration under three point one five six  reparative therapy we agree with your interpretation and not the government's interpretation is that you we still have a medical diagnosis problem and why shouldn't this have been few claim as it relates to the been a duty to assist violation which this court has held is not sufficient to support a request for a revision now ironically in the cook case there is some discussion about that might be different for duty to assist when it relates to service records but ultimately the point is that there is nothing in this record to suggest that there was a attempt to make a diagnosis there is a reference in the decision to examinations that took place as the government admits for non psychiatric claims why would a non psychiatric evaluation give a psychiatric diagnosis that this claim which was received after the original physical claims were adjudicated this claim in march of one nine hundred eighty eight was for the delayed stress description that he offered at that juncture the v a had an obligation to get his full service records there but again all the service records in the world how does that change the failure to have given him a full medical evaluation  for emotional stressors because of the precise requirements that are in the record at one fifty eight and one fifty nine that describe how you diagnose post traumatic stress disorder which goes to the events that the veteran experience frankly on it depends on when they asked that question the closer to vietnam the less likely that was for that question to be asked there was tremendous resistance until the a b a adopted the diagnosis and for the first half dozen years