one i feel humbled and dealing with a matter of this nature the presence of the council on the other issues that were raised this morning but i can assure you that to mr marrow of this matter is is of them  very clear the board did have a basis for making its determination no your honor they relied on an optometrist not tom interest as the guy at wal mart makes the frames for they did not seek an ophthalmologist a person who could identify not only wouldn't we have to get into a review of facts in order to reach that kind of question not if the court just court can find that the board and the lower court did not meet the duty to assist standard that set forth in the in the federal statute we contend that this case is focused on the do to assist statute is it is a factual find but the statute says that if the veteran is claiming as a matter of compensation and has produced sufficient evidence to raise the the doctor's opinion in the mirror was apparently not based on the record it was based on his and the information that he gave to that doctor history do i have that right that's correct or so that there's a factual question as to which one of those which one of those ships pinions is more having a lot of trouble finding an explanation that is in fact he did and because you're used you make the point that he's entitled to kid best case he could but you think that i mean didn't he have quite a bit of opportunity yes romney did he did there's no question about it but they still got it wrong yeah now they may very well of gotten it wrong  it was prejudicial to him and we contend that if if the v a i mean if you look at the v a it due process right in an application for benefits where there's the property interest at stake when all you're doing is applying for benefits process eking to qualify you haven't got any right yet of any property dimension do you the property right i think it does your honor i think the property ready halves is the right to a fair and effective medical exam the statute requires just repeating that he should have due process but again due process isn't something you get unless there's a property value at stake under the constitution what's the property at stake here i think the right that he had is vested in him as a better and that the statute that gives the v a the right to beseen him a pension for compensation is the right that we're talking about but he's applying for that he hasn't got it that's currently that you're looking for property rights and something you're applying for that certainly extending the definition of property beyond its normal dimensions isn't that i agree and i agree it is an extension i agree it's a gap i agree th but i contend that in this situation this gentleman has established through his application and through that with the record it is replete with the way he was treated that he isn't titled something more in time to a v a medical examination that points not only to the fact that he has that he can't they can't find certain records but they have and he had this got come up from a time in your brief you make please the court this case is about mr merrill's disagreement with the border veterans and the veterans courts conclusion that his god coma which is about three years after his just charge from the army was not related or not respect to the due process argument is that the facts of this case show that mr merrill when the ported very process to which he claims is now due in particular he was deep in the medical examination and medical conclusion according to its most current precedence i just add words and gamble that due process in fact was afforded to mr merrill and then with respect to his argument with the is there any danger of the process becoming an avenue to review factual determinations which are beyond our jurisdiction it could be your honor  do agree with that and i think that to the extent that the court has earlier recognized that some arguments actual arguments could be restated as a due process claim then those arguments just generally should not be  prime for example and i would argue that the reasoning and  you six minutes remaining if you'd like to use it all i would like to make one point in about your honor and that is the it is true that the that the veteran is an applicant at the time that i c due process rights would arise but it is but under the statute once he files the application the duty is triggered in other words it's past the stage where is longer he's on the outside looking in he's now better he submitted a client they may argue that you received all the process that you were due to you did get a medical exam every effort to they look at look at the record in that case they went back to that guy three d optometrist they went back to him three times before he finally got the opinion first he said yes got it and he had it mine is in the service and then he went back and he changed that to out maybe didn't have him he's in the service but he had it shortly there after he came back and they give him a third opinion the record a shit record is clear on that they were they were coming and getting opinion and they kept coming in and getting opinions so he got it right we contend that that violated his constitutional rights if there are no further questions i would like to thank you mr sardonic