please the court that you are essentially two issues that are at the heart of this case and really set the stage for the legal issues that on the merits the first is what did congress and the v expect that veteran claimants would be could be reasonably expected to do in connection with perfecting their appeals to the board and the second is what information does the board really require in performing its statutory duty to decide the appeal and it sets to a duty to develop the veteran's claim to the optimum and i think those are the two questions that i'd like to use as a framework for the discussion about the text of history of the statute as well as the board to develop aros resolution of one issue whether or not there was new material evidence in support of the claim to the v a s resolution of that issue was based on one contention that the discretion of the board to dismiss this appeal on that we're saying two things first as a matter of statutory interpretation that the think this is supported by the text of the letter history of the statute is that the statute nowhere requires arguments or theories of error or explanations of the basis for the are as decision or explanations of why  you're saying in this case it would be an abuse of discretion to dismiss the appeal on the ground in this case the board's discretion was never triggered because the statute does not mr rivera had alleged there sure and that there was then that the board had no discretion under those circumstances i understand what you're saying is that since the certainly the one of the dissents in the veterans court made exactly that point which is that the board cannot now come in and exercise it entertain the the appeal documents and  educate whether or not there was an allegation of error and then exercise discretion which twenty years or so after the fact is also a question as to when that's correct that's right and because there's no in  situation i think one of the cornerstones of administrative review is a statement of reasons and there's no indication in the record below that the board issues say in a recent as to why he was exercising it if he was exercising  d i guess that section three says the appeal should set out specific allegations of their factor law such allegations related to specific items in the statement of the case and then of  that's enough right but that is exactly our position now if you had a multiple issue case and you say i want to appeal all of the issues likewise i take it that would be sufficient because the board no was exactly that case that the one on the floor has a place where you can check all i did in the one nine form has evolved over time right and so the most recent interation of the form actually does have you're not addressing the rest of the spectrum and unlike the amicus brief you're not addressing whether or not there should be standards relating to the rest of us correct um i was where you say that's not this case but yes this case is one issue one claim one issue one the argument case that the claim to reopen whether or not new material evidence was submitted cumulative in repetitious evidence of the evidence in rushing does not as the dissent suggests in in the end bank case follow the decision below does not affect whether or not the and that is with respect to due to the failure of the board to either the or room not to forward the appeal papers to the board or the board to not act on those papers or the board to not explain the center whatever but we're dealing with a set of collateral documents and trying to say whether those collateral documents constitute a nuff that's problem number one and the problem number two is the board's reaction to the first if i could just address the factual in that the facts of the case are not only that there was not an order dismissing the case there was not also an order statutor required at the time for the r o simply to forward the documents to the board so there are two defects here so one the r o put up the smiths right the other thing you could have done is to send it to the board and it did neither  and i think once it had gone to the board the third step would have been for the board to look at the documents analyze the sufficiency of the allegations and then depending on the sufficiency of allegations exercise discretion to dismiss or not dismiss none of those steps occurred in this case and i think that is to the core of what he was referring to the my response would be that there are multiple steps that did not occur in this case that that issue gets raised again twenty some years later then the question is raised well what they did receive was not adequate and that's when the board looked at it under the under the statute for adequacy but stepping back to the beginning of the exchange this morning think it would be opening questions i think were i wish i could write my brief again after but it seems to me what's triggered here is the question of whether or not the board abused its discretion in dismissing this appeal that is what congress gave the board essentially if if we had confronted this issue in one nine hundred eighty we would consider the case we would have dismissed the appeal right and i think there's a problem with that is i read the word decision because i read that as saying that this kind court may have been operating under a more exacting standard of view in this case it sort of benefits the situation in that they did conclude at page ten of their decision that the document lacked the specificity there was a failure to but it's it's well established that and certainly was well established and two thousand and five that v h one one nine is not necessarily the rip required what's required is i to be a strong one nine or some similar document but which focused on reacting to the dissent but i think the point that congress was making was that we were giving a veteran especially nine hundred sixty two where there wasn't a requirement for any kind of detail in a regional office initial decision we're going to get the data in the benefit of the sort more to process oriented notice and what the basis of that decision was at same time we're going to require that trend but it wasn't at and that's the problem that  the board was the appellate body within the office of the within the v a and there was a requirement just like there is a requirement in this court to identify what it is that you want claimant wants this court to do but it's not now this is a plain language requirement but even but but the v a manual simply says you know that that kind of addresses the question that really happened here which which is if there's some doubt if they are a level send it to the evidence that i've constitute material evidence that would have done that might very well have done it and and therefore the r o is a misconception that it needs a form one nine is is of no assistance to the r o in this case if we conclude that what he submitted was the effective equivalent of that kind of stick in his letters right i don't see how the fact that the r o was sitting there waiting for another want nine that whether a document thousands of appeal you know yes they did based upon gibson and some prior cases you didn't challenge better and we did file an appeal on that i mean frankly in this case although we agree i think i'm not sure where the court's going to go with this but i would agree we would agree with what seems to be a pretty straightforward discretionary standard provided by congress to the board and so one would presume that an analysis of whether or not that standard was properly followed would fall under an abus exercise discretion that existed since well most of this century and that's never been exercised before for the first time particular instance in what sense would be the process be failed  the i mean he was he was notified in this case i mean the june letter says please give us a subset of appeal or case to be closed so he was informed of what he needed to do and he didn't do it but the standards  trying to think what the due process implication would be as long as the i mean the statute itself provides or puts anyone i notice that a failure to provide specificity could result in their dismissal were practice over the course of their d plus years changed the notice that i'd have to i mean i didn't actually analyze the results of the board practice over the fifty years to determine how many cases they determined were insufficient mission we have in a position i mean i can give you my personal opinion i can't give you the government's position i'm not sure where this is and in the process of whether or not it's even being considered for further review i tend to agree with more of the logic of the dissent than i do with the holding in the jordie i don't think that the form is ambiguous at all and i do think that when someone checks one box says i i'm doing everything but then everything else indicates that he's only so only  appealing three of the six issues and then at the hearing follows that up with again saying i'm only appealing three of the six issues although perhaps the administrative judge presiding appearing could have been a little bit more forthcoming  i think that would be a question for the reviewing body who's reviewing them under an abuse of discretion standard to determine whether that was appropriate however as the veterans court has held in this case this is not a single issue case this is a single claim case but it could be a multiple issue case veterans court to be the board to determine whether that's sufficient and most of the time they probably would find you know they did it's not something that comes up that often but in this case certainly they found that it wasn't sufficient and and our position is to the extent the court agrees that this authority disgusted with the board then any further review by this court would be outside its limitations because it would require this court to go in in the sense of the re evaluate those forms and determine whether or not they are sufficient under the statute and it sounds to us like an application question not be what to me is that couper portion of the  would think that if he is testing whether a new and material evidence had been submitted that that years not only the claim but also the assertion of the theory that is to say my theory of the claim other than saying my argument is that my claim is correct well again i think it's congress certainly allowed the board to make a determination about whether or not it had been apprised of the issues on appeal y  the other body there saying this was known and that is the claim he's attempting to pursue why isn't that something i think that the follow up it was the answer to that question and that there are many potential issues that could have been raised that's really what his frustration was here i'm not happy with the original decision and and the may march and may not any documents continue that theme that i'm not happy with the decision but they make no attempt to provide any rationale or explain what it was about and that it wasn't happy now i understand the court's characterizing this as a one issue case but i think it's fair to recall it was fair in this case for the veterans court to understand that the statute focus on what aspects of the statement of the case that you're not favorable with and in at this time as well for an argument that what at this time even if i mean recall at this time d four is different than it is today a failure to identify any factual errors in the state of th  in that sense specific means what what what about the state of the case are you upset with not that he needs to you know necessarily create sub issues but at least identify what it is and you're he does but i can't i mean i don't have i don't have a factual response to that statement and i but we could look it up and provide it and see what the basis of that statement was obviously this court knows it's not controlling  it's we don't deny that the vehicles out of its way to try to assist claimants and is very liberal in its views of what is sufficient in this particular case the board held that what was provided wasn't sufficient so it's really not i mean it sounds like it's not just magic words but it's magic forms the new form certainly goes some length along those lines where it allows me this one doesn't have one of those boxes that says  i'm challenging everything from where the new form does and you're familiar with that as attached to the others decision and that other problems but actually the form we think is fine but certainly the practice of the v a is consistent with its manual that says that they will try to accept you know anything that gets close to the requirements point in the nearly eighty years that this type of provision has been in effect it's back to the thirty's when the regulation went into action or was created this is the first case to be raised that the past of the scored at the veterans court in the past eighteen years this issue appears to have only come up twice and those are the two cases cited in the party's briefs and so yes  the veterans benefits manual is correct that the historical practice for eighty years has been to do except blank form nine's to not require the level of specificity that government in the veterans court in this case and that goes not only i think to the abuse of discretion point and the due process point but also to what is the understanding of the statute itself and what is the understanding of the board's you to develop th veterans claims and so they're all part and parcel in that yes the due process point as to the board's change of heart as to how to exercise discretion is one way to understand the historical practice and in other ways does that the statute has never been interpreted that way it was never understood that way when it was inactive and has not been arrested that way for as long as it's been in force the other thing that i would point out is from that both from the government's brief and from the argument right in many respects it requires more than what the v a required between one nine hundred thirty three and one nine hundred sixty two and it also requires more in this case and what the state in the case itself had at adjudication that that the correspondence was not sufficient and therefore for form nine there's no evidence in the record that there's no decisional basis for the r of making education that the correspondence was insufficient and in any event the r of was not permitted statutorily and as a matter of regulation to make that determination because the aros duty was simple once any correspondence was received after the state in the case to forward that corresponds to the board that was the such to requirement in the regulatory requirement and for the board to assess as a threshold matter anyway whether they're worse the allegations were sufficient to meet the standards