followed by road to retreat or whether your final position is as stated in the great  my reading was that i made numerous what i'll call very red assertions in the rubric but in the grave you substantially reduce the scope of each of those three i'm just trying to figure out whether you is going to involve yet further narrowing or whether the articulation of your argument in the green tree is your final rest and warm well your honor my difficulty is is that there is no case law here so that  there is no parameters pov which to deal with this except by comparison and what i was attempting to do in the reply brief was to respond to the specific assertions made by the government in terms of how they view understanding of how do you think the court should define the burden of proof while i do not believe that there is a burden of proof that is supportable by the language of fifty one and zero seven a is there any requirement on the queen there are two requirements to support and to submit and what is important i believe support means to respond to any inquiries by the v a for additional information or evidence concerning the application that was made for benefits and that's all you have to do that's all he has gotten better and i can write a letter and say long to complete for an application for benefits in that application form it merely asked you to identify what you're currently being treated for where you served and does not mention any of the particulars to support a claim i e medical nexus within the v a s own application for so what we're dealing with here and particularly in this case is not an application for benefit a determination as to what the evaluation of that degree of disability is there is no application for that says i believe i am title to x percentage of disability let me ask this question response to the notification under fifty one of three as to the evidence necessary to substantiate the claim and once they receive that information if there is something that they are directed to present in addition or support in addition for instance let's take that question of encouraged we are on able to locate your military personnel records do you have any documentation that would confirm that you were on  normally understand the terms of burden of proof the burden of proof is on the v a to fully develop the records to determine whether or not the evidence that has been developed by  meets the criteria either for entitle them to compensation in the first instance or as in this case what the appropriate rating would be but in this case isn't the fact that we did meet some burden in the sense that  they're better and did support his claim to the extent that they found that he was seventy percent his or was seventy percent so it isn't like he didn't do anything he did something he showed he h mix of factors here that the you know that the trier of fact was able to balance and come out against your client so i don't know i think a lot of the discussion in the briefs and even th ones we've been having here on hypothetical in this case well that they are hypothetically are because there is such frankly gross ambiguity in the statute present and support does not give an claimant an idea seems to me if you look at the poor decision even if you were right in your statutory interpretation i don't see how it will it's applicable at all to what happened here because in this case the board concluded based on the record that that with medical evidence that indicate the bechard remained oriented to time in his memory with the country intact in other words he doesn't deserve the bump up from seventy to one hundred and well is wrong with that even under your interpretation of the latter well what is wrong about that is and now this goes to the rating criteria that's utilized and prior to an amendment by congress this last fall we wanted to attach the reading schedule we are now able to attach the remaining schedule as of last october so i thought we were prevented from going directly towards the reading criteria but if you look at the record here are what the board did at age entitled however to the maximum schedule or criteria they give no explanation as to why other than as you cited that he was oriented to time in his memory was essentially intact right there is no correlation between oriented to time and memory essentially intact to be entitled to a total rating under the schedule what the schedule rating provides for b is a total social and imperative but it gives no explanation it is no indication to the veteran as to what evidence he needs to come forward with to prove if he has a burden of proof what would given what the boards are really thought that change would be the board would have an affirmative obligation to show where in the record there is a preponderance of evidence against the claim as the veterans court analyze evidence against the veteran loses that should be the veteran scuse me the v a s burden of proof there is no it seems to me what as a practical matter you're taking issue with is not the birds in terms of how it applies to the case not rise to the level of preponderance and that they should have the burden of demonstrating where in the record and showing in the record where there is a preponderance of the evidence they don't even mention the fact that there is or isn't a preponderance of evidence they simply declare but it isn't a fact that your client admitted and i'm quoting from page one of the appendix that symptoms as recorded in the medical evidence do not include those listed in d c nine forty four forty as exemplifying total occupational and social impairment required for one hundred percent rating you didn't make that admission no actually he did i did and i made it in that brief in the context of the diagnostic code that is relied upon by the v a to rate psychiatric disability and there is a listing that starts with  good post described total and social impairment and then gives a litany of descriptions of potential symptoms the problem here is that when you have post traumatic stress disorder you don't have that of symptoms there is no veteran who suffers from post traumatic stress because stupid not every veteran who suffers from post traumatic stress disorder is going to have that entire litany of symptoms now there are in fact some who do total disability if he has zero out of the ten factors no your honor what i'm saying is that in order to defeat the claim in order to deny him the right to a one hundred percent schedule read the v a and in this list if you will of identifiable symptoms he has some of those symptoms the question becomes how many of those symptoms do you have to have what were you wearing the belt to get the one hundred percent i'm having trouble sleeping met my to to simply declare it no but they have to refer to the evidence if you look at the board's decision the board's decision covers the description of the medical care provided to this veteran to get it in march of two thousand and two in in this documentation of is psychiatric symptoms is something called e g f score as a global assessment of functioning scores adopted by the american psychiatric association with and the v a has adopted that for the perp says of waiting mental disorders and he has had scores that range from fifty to fifty four were to do forty five in two thousand and four and i believe the in fifty two and then in may of nineteen excuse me may of two thousand and five a gas score of forty fock so when you had those fluctuating global assessment of functioning scores the v a has that evidentiary base to deal with that's the evidence that has been accumulated has been a several in this record and then they need to compare that against the rating criteria that they have and show why that evidence is amounts to a preponderance of evidence against the award of a one hundred percent  say that he couldn't possibly be a hundred percent disabled on the basis of the symptoms of observer well your hon conclusion which leads me to think that you're implying that some witness with technical competence in fact presumably would have to be a third of drawing that conclusion otherwise her your argument the honor in this case the initial rating assigned by the v a was fifty he took an appeal to the board the board found that he was entitle not to the fifty that was assigned by the v a but entitle to the seventy so what they did is they looked at the evidence they weighed the evidence but what they didn't do and what i believe they impermissibly did was to shift the burden to mr scotia or to prove that he was entitled to the one hundred percent by their declaration in the concluding paragraphs of their board decision that it was said lee not intitled to the maximum rate they gave no discussion in their analysis to support that particularly in relationship to this what i believe is the v a s burke these are the the analysis of the evidence on the preponderance of the evidence and did have a totally  in what your basic argument is when you boil it all down to the bottom line i don't understand at all what you're saying you now you seem to be thing if i'm understanding you at all that   in detail in their own opinion or it automatically reversible error per se i'm not saying they have to disprove it they have to show where in the record they've developed there is a preponderance of evidence against the claim under the rule of law created by the v a excuse me by the veterans court below they say in the a b decision that the v a is required to presume that a veteran is question is who have to prove what before we know whether it gets one hundred or three hundred seven that adds correct your honor and i'm simply saying that when they write a decision that the nice hidden benefits they have to support that decision by pointing to a preponderance of evidence against the claim not that it's totally against the claim but there is a preponderance of evidence against their client and that that is their burden that sounds like you're saying that they did they may have had enough evidence but they didn't write even enough opinion and therefore we should reverse because the opinion wasn't well written no no i'm not saying that are wrong on i'm trying to present a clear question of law as to the allocation of burdens and whether there is any support for the notion that there is any allocation of burden other than to present and support a claim by a close up and that in this unique context that the bird remains exclusively with the v serious but it hasn't really become extrude fifty or below is extreme so in europe what you're proposing to athens the way we ought to interpret the statute is that limited want to cases like you're talking about the case where when you have fifty percent or seventy percent you ought to do it this way but i understood your argument about twenty construction to apply across the board to cases where there's been a determination of fifty percent but also to cases where there's been a determination of zero or ten percent that you're the one you're proposing would apply to all of those cases not simply that those cases where there's been a fifty percent to terminate all that absolutely correct or it would apply to the initial determination of  here impairment then why doesn't the evidence in this case carry a burden assuming you have it in favor of your crime he proved one hundred percent his ability because he had consistent he carried in her because of the ambiguity of the reading schedule if you go to the diagnostic code at ninety four eleven to review the diagnostic criteria for post traumatic stress disorder you'll find that post traumatic stress disorder  evaluated in the exact same way as every other psychiatric disability and the rating criteria for one hundred percent is the same for a psychosis as it is for post traumatic stress disorder the v a makes no distinction between the label other than the diagnostic code and the rating criteria and that's why i mentioned parents that italy that we were previously on able to attack that rating criteria now we're able to a tell you not doing it in  it in this case but i couldn't do it in this case because i know my way in that case i still don't understand what your basic bottom line contention is i walk the v a tech hammer a direction from this court that it is the veteran files of application and they would quest his support or her support and she refuses to provide information then that's a different but if they support the claim provided the evidence the evidence is developed then the burden would they have to show in this case in order to establish denial of bond that there was a preponderance of evidence against the award of one hundred percent specifically hop i mean what we're told that he was told he was not totally in pyrrhic socially are occupationally but that's no different then if the bird i mean that is the answer yes to what i'm saying that they have to show the bird that they have to show that he was not totally socially outerspace fundaments of evidence that he was not that they have to prove the negative and i agree that it is a very difficult bird but this is a neat  system that does has no specific statutory direction from congress as to what evidentiary burden is on the veteran in order to be able to obtain benefits but once the the veteran i didn't support it i did support it and they ruled against me isn't that like a putting it back and that's why we framed our argument below to the veterans court that the board misapplied the bird that they allocated a burden on the and that his memory was the centrally intact so let's assume that it's supported it seems to me you really take issue whether or not those criteria are sufficient for establishing the rock of total occupational and social impairment with all due respect your honor it's impairment and therefore there was no waffle or a legal basis to have denied him the one hundred percent rate it read that he was not entitle to the fit in he was entitled to the seventy and then they were required to consider the one hundred a different like yet or factors by the way i don't think you do i think you have the singular or limited jurisdiction to decide the question as to whether or not there is any allegation of burden of proof decision by suggesting to the court below that it imposed a burden on the veteran to support to do more than just support the claim to prove that he was entitled one hundred percent by opinion that they did weigh the evidence and found that the government had satisfied but ever its burden is that this proven one hundred percent because of the orientation found to exist in time place or because you're not reviewing the board decision not your reviewing the decision of the court below the decision of the court below rejected mr scotians assertion that the bork imposed a burden on him you are not looking at that application of law to fact you're looking at the question of law that was rejected by the court below that there was a burden a finding made that there is a burden on a claimant beyond the support difference between the general sort of general birds where usually you have to demonstrate that you win you win fifty one percent of depending upon the setting and this case deduction the evidence only have to show fifty percent now how do you get there and that's you know the collection of the items does does the veteran have a duty yes he does clearly he's always had a duty to present and support his claim and that's what fifty one o seven a says and what happened well all that happened after the  prior to the cia's escort well knows before the v a s certainly a duty to assist responsibilities kicked in that action had to submit a well grounded claim which involved the submission of some sort of evidence addressing all three of the what we call the colusa factors in service of that present disability and the nexus that connects them and after a submission of late but well grounded claiming the v a s duties start and of course in more decision the veteran psychiatrist in assessing the degree of impairment caused by post traumatic stress disorder of a civilian person as a standard of care would recognize that you have to test six different things for example this case there were two prior remains by the bor for the further development of the evidence now i've seen many cases and night in my time where those early reviews by the board are precisely to address the concerns that is race so individual doesn't thinking of this court to generically define what reasonable effort required and i don't know how you could more generically define it than reasonable efforts when you could say that case like this there was reason with his and his medical doctor was even better than the civilian standard of care well i don't think under any definition of standard of care in this case you have any question about this instance that was provided nor i'm right that he's substantially impaired if the examination involves nothing other than interviewing him it's not clear that it's going to be a sound confident examination if he's half crazy and he's the only source of information the information may be quite incomplete and maybe not even reliable i can't i'm certainly not an expert in mental health care so i don't know how someone feels about actually performing an examination let me give you an example from this case the better and authorities seem to be moved by the letter that is why i wrote that seem to be part of the basis of increasing f percent to seventy percent now say substantially impaired and she has eyewitness observations about his level of functionality then maybe a competent exam would really wire that she and she come in and each interview by the veteran's psych that's possible or rather frankly i don't know if that's even consistent with the state of the art of medical science i do know that you're really suggesting another duty to assist argument which is similar to other ones i've seen raised before the board before that may or may not result in every man and again that question involves an application of some standard to the particular facts of a case like this one and to me is case the individual came in with had been rated at fifty percent he was subjected to several medical examinations and the evidence was gathered at the end of those medical examinations the decision maker now not doctor has to has to sort through that supports the seventy percent rating on one that supports one hundred percent rating and in prior to that for the several pages before you have a discussion of all development that are taking place and even before that you have the factual finding just the way the board tends to do these things and they start out with factual findings on page fifty two and so in the analysis section and this is where i think it just goes into having some problems they simply say given all that you just set the criteria for seventy percent is matt obviously but that the criteria additional six factors have to be present but they're not present so i can't give one hundred percent and so that's you know the question i'm burdened getting to the final point is so if those factors are present i think if they come down to  because there was a failure in a duty to assist but that's not the argument that's being made in stead there just that there are so i mean just jumping to the clue conclusion that well because because the board didn't say that after reviewing these the preponderant they did use were pun additional five things and we've had medical evaluations and clearly the medical doctors were not instructed by d h say go in some find support for the first five but don't tell us if you find the other five that's not what happened here we're going to suggest and some sort of the board thay what the government have to show that it's not really seriously just order and so he will it is that only i mean frankly that sits at the times that comes up a similar situation where board is interested in in attaining all the evidence possible like happened in this case and sitting down with it in front of them and saying this is where totals up and that's the classic decision makers decision that you say this this is the evidence here this is the evidence here and i don't because in this case you have a medical professional that goes out in collapse or performs examinations and so his his ideas this is the state of this doctor this is i'm trying to give you a complete picture decision maker of what th mental condition is that this is a bigger than applies the regulations that say you get this for that you get that for this and says he's satisfied to seventy percent but he doesn't satisfy one hundred percent and and so we  this poor decision that's what the board does well what i said you know i heard today was well his the particular condition of this veteran should have been answer but they clearly do say that when they say there's seventy percent you have to have these factors one hundred percent you have to have these factors this is the evidence shows only seventy percent it does not show one hundred percent that that is it that the evidence win otherwise i mean this is sort of we're talking about two different things all at the end of the day i look at this case and it's simply a complaint about the way the board wrote its decision and an attack on this idea that and especially in this case when when you have say five criteria that allow you to get a seventy percent rating but you need an additional five on top of those to get to the hundred percent and and medical examiners identify the state of the individual and then identify what it is that would support those first five but not the second five and then that that in itself is evidence against one hundred percent rate it's not like whole and thing on the other hand that the veteran has fallen short of probative evidence that would get to ecuador is there any difference between the two things n i don't think you're just describing two sides of the same coin a thing your honor so i'm not sure there is any practical difference between you saying that in which case maybe there's no need to try to articulate who has the bird that would be if i you know again i find his case to be about a lot of things but not necessarily about this burden thing that that you know we discuss and we provided all review of the statutory language we don't think that the  confused as they understand your position as you agreed that the veteran met his burden of production the only thing lead for the network or this court could even look the evidence and makes the call are we had fifty percent or not and in this case they said no so it doesn't really you know the argument the reactive argument by mr schools in the us frankly but he didn't list for me those four pieces of evidence that that one hundred percent reader acquiring require well if they do actually but you know in fact you can see that as you pointed out earlier in this is people for the veterans court you can see that the evidence didn't rise to the level of one hundred percent and i think ultimately the argument comes down to as it did in the doing case what does that mean in a situation where the decision maker just has to we all get in the way the whole process works because it is as i said earlier the v a does not instruct the medical examiners to go out and say and then find out that's not an issue and here we can we don't need to but i think ultimately that is just that's the sort of challenge of this case is you have a case where the the doctor gave all this information they weighed in on the wrong kind of because they waited on the scale putting the burden on him and the burden should have been on then i guess you know because i don't see where he gets that other than the fact that he didn't prevail so the only the only factor about this case that would even suggest that is the fact that he didn't prepare but that's not a factor at all because what happened is that the decision maker weigh the evidence and determine that it that there wasn't enough to even get the fifty percent as far as one hundred percent rated there then i heard a little bit of that in the discussion this morning was well this person really was affected by his post you know all these years letters well that's not an issue here as as mr carper conceded you can argue all the media standage come down but that's not attempts able to obtain any evidence that suggests if he actually has a disability there's no evidence at all well that that no evidence at all in support of is one hundred percent evidence against given the fact that you have to decide i think we i'd like to begin at page sixty of the joint appendix where you'll find that i've got it graded criteria for seventy percent and at the bottom of the page it begins with one hundred percent and continues on to pete sixty one and i sixty one and sixty one a seventy percent rating may be assigned where there is occupational and social impairment with the fission sees in most areas such as work etc etc one hundred percent rating may be assigned two which is the medical evidence recited the prob indicates the ret the veteran remain oriented to time his memory was essentially intact those criteria appear in neither rating right here so it is a because it confuses whose bird it is and if it they had said that that clearly i think there would be a clear r perception on the part of this court well as to what the error was let me put it this way i'm reading neared and instead we find here evidence in support of any one hundred percent probative factor and therefore we rule against the better i'm sorry honey you cannot read it that way particularly when you look at page fifty nine of the board's decision which were sites that the record contains the may twenty five letter from the v a staff psychiatry and social worker these are the two individuals who are treating him i will take the time to read through there but it is a description that fits within the rating criteria for one hundred percent not clear this just goes in and i were faced with the question of do we argue that the evidence was in that will pose do we argue that there was in fact a preponderance of evidence in favor but if we don't have a decision that starts from the assertion on the part of the board that there was a preponderance of evidence against we don't have a basis to start from and that's the problem with out without a legal determination by this core of what