escobar arising out of the denial of the total disability rating based upon its individual on employ ability under the authority of regulation four point one sixteen but the issues in the a arise out of the statutory language in the duty to statute with respect to expert opinion specifically that language provides that in five one of the three a the one that the duty to assist shall include obtaining a medical decision and medical opinion necessary to make a decision on the claim in a series of presidential decisions the veterans court as opposed to rules with respect to that language and i use the word rules of law because it's not quite clear whether they were either interpreting that language to establish the rules of law or whether they were creating judicially created rules of law that are in grafted onto that language and the first rule is that the phrase necessary to adequate we don't have jurisdiction well that is what i'm here to do today to persuade you that it is not a question of fact with respect to expert opinion testimony that is used tonight benefits in the context of a very unique paternalistic better and system and the reasons are several first off the each one of the c b c decisions that has said that this is a question of fact is based upon the two thousand and eight decision and the areas vs piece and each one of the subsequent decision simply cites that case for that this context ad with the is a question of fact and again it ties back to the language necessary to decide the case well now if we were going to look at facts yes we would see in this two thousand and seven mussel exam report this they said well we can't live fifty pounds but we can work at a computer no t d i you and but that's if we get to the facts and how could we decide this case without getting to those facts the well the  is that the and this is this is what the veterans courts presidential decisions have focused on is whether or not the rationale that is given is sufficient got to go and examine those facts which as to it's more pointed out is beyond our capability well you do have the authority to in the jurisdiction number one to the facts of the rationale of the opinion itself and i get our brief we did go forward to try to show out the areas where there were problems with this particular opinion to show that that that there are instances here now as you pointed out that said that he could work at a computer station there are several unanswered questions with respect to that particular rationale that make it impossible for the v a educator or us to determine whether or not the ultimate opinion has been a pro but a value number one he determines that the that mr escobar suffers from weakness  to cater also they determined that basically he had study and had work experience as a medical technologist there assuming that all that a medical technologist does is work at a computer table where does that information come from no there isn't any information in the record as to what the responsibilities of a medical technologists are and in addition when he last worked as a medical the ultimate question of law is the ultimate question is what the else the question of lot is whether or not the that rationale is reviewed under a clearly erroneous standard or whether it's reviewed under of a noble standard and we're argu quotations from some cases first comes from your concurrence in tampa where the issue was whether or not the veteran was entitled to issue vast majority of them and quote thorough analysis of the progress of the medical opinion is critical to ensuring the fairness of the adjudication process and the veterans court has accurate fully articulated sound reasoning for the conclusion that contributes probative value to a medical opinion most of the property value of a medical opinion comes from its reasoning and this court in pereira said that an expert's opinion is no better than the soundness of the reason supporting it what i'm here arguing is is in the context of a the unique veterans adjudication process where it is opinion if that opinion is fully articulated and then to determine whether it's probably articulated should be a question of fact so that there is essentially an even playing field among all of the why it is pointed out that he retired and that he retired by age and disciplined a generation of words to me is totally irrelevant to whether or not especially when i was twelve years ago is totally irrelevant to what his condition is today and what his rating should be today twelve years later that's an issue for another day it has not been an issue that has been brief in this particular case  i would argue that the if you look at the clearly erroneous standard all it takes for the judge to approve the decision but by the board i which means that one veterans the the opinion or the rationale for an opinion and one veteran's case one judge may decide that it is adequate and in another case another judge may decide that it is inadequate a day noble review as it helps increase the chances that she's going to have a fair due to cation where similarly situated veterans are going to mark in a box with no explanation for the opinion itself absolutely no way to determine whether or not that ultimate opinion had any probative value is the rationale for the decision that gives appropriate value to the adversarial civil system where the a party has the right to pretrial discovery of the expert of the rationale for the expert's opinion he has a lawyer who is going to do that for them more often than not is going to have his own expert that's going to guide the lawyer in doing that not only does he have that he has the right to cross examine that individual before the fact finder so the fact finder can assess the rationale for the ultimate opinion there's nothing comparable at the least at this point in the v a to quit tory system and in order for there to be any way have that and i think that is a question of that a court should review otherwise you have very traditional very little judicial review over whether or not that rationale is at to run into much a lot of time and say the rest of your panel time may please the poor fortunes dismissed c p o for lack of jurisdiction the primary issue is whether the veterans court decision actually contains an interpretation of the duty to assist of thirty eight necessary where the existing medical opinion in the record fails to adequately explain the basis of the medical opinion that interpretation is nowhere to be found in the decision essentially the veterans litigating the wrong case the veterans decision the center point of the veterans decision is on page two of the decision which is page six of the opinion that veterans court says succinctly stated mr escobar fails to demonstrate that the record medical evidence left the board uninformed on the issue of gun employee ability or that an additional medical opinion was warranted with the veterans court was doing in this case was reviewing the factual findings that the board made and deciding whether those factual findings were akbar supported adequately by the record evidence which included the medical pinions and then addressing the contention that a no other medical opinion was required the veterans court found that there was no necessity to get another medical opinion in apply the plain language of the duty to assist them with regard to section five one o three a the duty to assist there are a couple of promise to the statute and this is just the plain language of the stature first of all under paragraph a there has to be competent evidence that the veteran has a current disability eighty seven is service connected but then the ultimate question is does the record and that includes the entire record does that provide sufficient evidence to make a decision on the claims what the veterans ford did is review the findings find that they were supported by the record and find also that they did not need any additional medical evidence to decide the client you know the courts asked questions about the retirement day they were explicit findings question but the boy did make an explicit finding that he retired in one thousand nine hundred ninety and that reason he retired due to age not that he retired because of disability but that he retired due to age with the veteran scores did is review all of these findings and find that they were supported in the record there is indeed a medical opinion in the records of states that he retarded in and its approximately thirty seven years that he worked according to the medical opinions that are in the record and there is also the medical opinion which is directed to the question of unemployability and it goes through his medical history his employment history and it also knows the limitations the fact that he cannot lift more than fifty pounds he cannot more than fifty pounds but also makes a explicit binding that he could work at a computer station the other thing that i think perhaps has lost sight of  it's not just whether the veteran is on include bill it's whether the an employer ability or the contention of on employability is service connected with the board did in this case is make explicit findings that it was not service connected and what the veterans court did is review those findings and find that they are supported by the record and there's no need to obtain yet an additional medical opinion on this precise question so i think what this all shows is this really is a it's a ordinary factual case the veterans court did not make any interpretation of the statute and i would also know that there is same thing as a statute but what the veterans gore did is just apply plain language in this case you know no additional interpretation and it reviewed the record interpretation of fifty one three of the duty to assess that that's fully correct it doesn't say that it's really a question of fact it doesn't refer the clearly erroneous standard doesn't refer to anything like that but i think that we have to presume that it following the presidential decisions that came before it and also what we did not hear is why it should be equipped why the asquith c of the rationale should be a question of fac legal sufficiency of the opinion under the water case this court does not have jurisdiction to make factual determination or factual sufficiency determinations of fact but it has the question has the ability to make determinations as to the legal sufficiency of certain evidence on the site metropolitan versus more united states supreme court case which gives the just the gives the example of if a fact requires two witnesses that testified to it and only one witness testifies to it if that fact is legally insufficient and may not be used what we're saying here is that it rationale that is insufficient to