records without the foundation to show that that event would normally have been recorded had it actually occurred the court declined to review that declined to apply that rule of law that brings that issue squarely within this court it what the veterans court did was essentially say we're not going to rely on or we won't we'll look at what all the facts and and all the decisions of the board separate apart from the absence of the service evidence and then found that even if it's even having referred to the service record evidence of the absence of a service record evidence was was not prejudicial error are we allowed to view a conclusion of the veterans court regarding what constitutes prejudicial error or not i think that's particular question your honor more accurately can you review whether the veterans court had the jurisdiction to make that initial planning a fact regarding the there's particularly if you can in light of the board's obligation to consider all other evidence and consider the application of the benefit of the doubt it's a very thin it seems to me you're making one of two arguments then you're either arguing that the court of appeals or veterans claims made an error in making a harmless error finding which i don't think we can review or you're arguing that the court of appeals or veterans claims doesn't have the power to make a harmless error determination if you make either of those two or you much because it sounded to me like when you started you were saying that and then when you finish you were saying well but the court of appeals made determination did it not when they said that we find that there is no prejudicial error here even if the board was wrong with respect to the legal issue don't believe the board or the court could make that finding him noble that's my question are you saying that the court doesn't have the power to make that kind of harmless or determination i'm so that's what it was right it was a harmless  a credibility determination could not have been may because there were missing letters no i'm not arguing that it is under the facts of this particular case  i'm not saying a credibility determination could not have been made we're saying that in reaching that decision the board relied on evidence that was not reliable and the question then is but  i would argue there is evidence in the record which under eleven fifty four a board must consider in light of the circumstances of this service we actually know returned to california he got that stamp on one of his up personnel records and independently the board has confirmed through other sources that his ship docked at say well on two different occasions where otherwise without any evidence other than the veterans just funny as to what he actually did in the service where he traveled we don't even know where his ship docked of their i once left california in february anything that satisfies the burden of proof right if if the credibility decision stands then i think that is correct but the question is whether that credibility decision can't stand on the basis of evidence which is not reliable and or the ac case could return to the point that we were discussing earlier and i don't want to beat this into the ground but i want to make sure i understand what your legal point is with respect to whether the veterans court has the authority in appropriate could well end in any case that it decides to apply the harmless or all to do so whether it has that authority if i hope but that's important because you could have a harmless to error determination which in itself presumably wouldn't be reviewable by us even if it's wrong right up that's true but i think this again i think this is comparable to the case where the record is altered by that decision that certain portions of the evidence that the board relied on are not reliable then we have a real question of whether or the an inconsistency that i i think would be a further explanation by the board okayed about going in and coming back out but isn't that going to be present in every harmless error inquiry where you say there may have been an error with respect to one aspect of the case but we think it was a prejudicial because the other evidence was amply sufficient to support the boy's determination that is the essence of harmless error discrimination sorry well i come back to sounds to me like you're saying they don't have the authority to make a harmless error determination because in this case if suppose there were thirty items of evidence in addition to the records issue and they said that the evidence is overwhelmingly strong that he wasn't there but there are the boyd relied on this and this records business and we think that we're wrong in that regard but if it was it's clear that the errors harm you know a great reliance was playing out the workplace great reliance on the absence of records if the board should not have relied on that could not have relied on the absence of records then we're left with didn't i mean really the court did say all right the board relied on three things and one of the things the board said is that you have to look at weaknesses in his testimony or problems like th compare that or add it to the absence of service records and so ultimately the board really did we base its credibility determination at least in part on an improper consideration now isn't it's so when the it that's court then says we're going to take that improper consideration off the table how did they then do the weighing that the board itself did how does the veterans court have the authority to where where an individual station on that it actually served is the type of information that moment expects to be in military records but the location of the ship and the veteran space though on september twenty second to twenty third one hundred forty the absence of an entry in a record may be evidence against the existence of a fact if it were ordinarily to be recorded so here the board made the very record and found on the basis of the inconsistency of the mr one of the statements alone that it was that there was no clear air the veterans court dress ms harmeet arguments in order the first one being the legal wrongdoing below is a relevant again it's not harmless so again your honour's correctly articulated the issue here it's not whether there was a finding of fact in the first instance but whether there was an application of harm there well i'm not sure if fully address its determinations with respect to the credibility issue and if so is it inappropriate for the court to have then fused them apart and treated them as if they were independent grounds of determination your response wasn't significant part that well the court which right in looking at the record but but we have to assume at this point for purposes of of the argument about harmless error that the board was wrong and then ask whether nonetheless the court was right  saying that the error was harmless because of the credibility issues so i am what i need to hear you say is what where we can determine what the board has said that though the credibility issue was quite independent of the records issue well i first your honor would know that the board did say taking all of these facts together that they feel they find a way of the evidence credibility issue i mean when you say they didn't come to conflate they said these things all taken and they didn't say they just said inconsistency is in his statements as well as the lack of documentation of the claim service in the service records and the fin board could have done not the court didn't do that here but again i mean i guess the we could say that the board would have to to say kind of articulate it in that manner but again the the veterans court doesn't need to address the other issues because this one promise enough nothing has changed and it's the application of the rule of prejudicial error not a finding of fact in the first instance evidence other than the questionable evidence that could have supported the lower tribunals determination or is it the question of whether the lower tribunals surely would have reached the same conclusion based on the limited subset of evidence that it was appropriate for it to consider you understand the question i believe i do your honor and again i think i don't want to waste anybody's kind i i answering a question other than what and even with the board even if the board had said for example that which it did but had it set that the factor that it impresses the most and on which we think this case most clearly turns is the absence of any record but there was the inconsistency it would be appropriate for the court of appeals to have said yeah but the inconsistency is falls out because it was an inappropriate reason how do we know whether or not in the absence of that third prong the board wouldn't say well then give him the benefit of the doubt will even though there were some inconsisten evidence doesn't necessarily weigh in air of the veterans administration doesn't necessarily weigh in favor of the that are in kind of like tiger goes to the runner and they thought if you have three reasons i mean again the only way to make that happen would be for the veterans court to have found that the for its credibility determination was erroneous was incorrect again that the application of a rule to lots of factual determination  know that the benefit of that rule doesn't come into play because there's no balance that you know that needs to be a particular area within the ordinary meaning of that word it is sufficient if he participated or rather if he provided support services for the occupation even though he may have been assigned to a different u to whether the one statement that the court relied on being that the differ that even though that after an erroneous late remembered the specific date the dates that he did remember are still within that time period the regulatory time period now will the board find that that better inscrutability without the backup of the absence of record i think there's a good argument to be made that it would but i don't think the court of appeals for veterans claims could