at the end of the week it's been a great year my first year or so i think him so i knew the mission just the press just preston along with a member of the bar and is in good standing with the highest court of virginia initial one hundred percent rating but due to some error in paperwork at the v a he was not provided that right at that examination so is one hundred percent disability rating maintained in effect for those five years then he did get the benefit   that for those this photograph is in effect for five more years before they can be reduced or changed there has to be the v a has to be reasonably certain that improvement will be maintained under the ordinary conditions  yes or on the question of law is whether that statute and the company case all brown vs brown as along as well as the see that's after that as well as brown versus brown whether the material improvement has to be not just for the disability but for the veterans entire disability picture the holding the brown versus brown was that not only must it be determined that improvement in the disability occur but there has to be an improvement in the veteran the ability to function under the ordinary conditions of life and work now the v a in this matter determined well his prostate cancer was no longer in effect so obviously his prostate cancer is gone and we should reduce is rated at that is  material improvement in the disability which your chest is and that the c a t c in the board in this instance just said we're just going to look at the fact that the cancer is gone and the story but if i need at least certainly the board opinion they for pages and pages and discuss the residuals so that seems to be sort of cut against what you can arguing is not legal and if that's the taste in my reading is right hear the board's decision yes they address the residuals but they don't address the the application of the law they when addressing when addressing brown vs brown thirty c f r three point three four four and the board's decision they only state that because his disability improves that that is then a april and proven in the veteran's ability to function they do not address whether or not those residuals are actually in fact not approved because if they would have addressed that there is no way that they they could have possibly or probably found that the veteran has had some improvement when he had prostate cancer for all intents and purposes he was he was one hundred percent normal he could walk he could work he was completely normal all he had with prostate cancer now yes i kid cannot control the bladder at all it is nerve bundles down and that region which is completely removed and if the board would have addressed whether or not he actually had some and movement there's no way they could have possibly found that you did because prior to the removal of the improvement and that he no longer had prostate and that is the that is the question was here whether or not is immaterial improvement of the disability or where does one hundred percent rating come from and because the prostate cancer right that's correct it didn't doesn't matter if it's a significantly impact in his daily life he has just one hundred percent temporarily while he has prostate cancer that's correct and it's so your argument seems to be that because of that one hundred percent the logic of that is if he doesn't get better overall and holiday of life he should maintain a hundred percent but it seems like there's two different things going on there he's getting one hundred percent because he has prostate cancer after he recovers from prostate cancer which i think we ha clearly addressed all the residuals and they determined that he was entitled to a certain level rating by a ten or twenty percent rating and they also gave him a special rating for the loss of creative work and so they clearly looked at all of this stuff and address how that impacted day to day life in the way they did it so isn't it implicitly that they looked at this regulation and determined that he had an overall improvement otherwise they wouldn't have reduced it what we read in the board's decision that they never addressed specifically whether or not there was mature improvement and i agree they certainly addressed that his forty percent today certainly addressed all of the residuals but they did not address they dress so that only for rating purposes only to determine whether or not what level though should be rated that they never made a determination that he's actually improved here and it's a logical conclusion they've decided that all these things are rated at ten percent and he hasn't proved that if they were severe enough they would those five years would be back down to zero percent or whatever his is his rating should be but and this instance this veteran has been rated for consistently for five more years and one of the reasons that those regulations are in place are to protect veterans who are graded continuously for that period view of this case really comes down to under that regulation you think they have to use specific words to say his condition has improved i think they have to use the specific words and they have to actually have to make that finding and in this matter there is no way could look at the facts and determine that he would be entitled to anything less than one hundred percent rating just on the symptoms and that is directly an odds with what they have rated him mr martin only have the symptoms and have never had the cancer and never had the rating in effect we have no argument with with what you currently rated as the difference here is that this rating with in effect for five more years if you look at the the basis of the diff about the disability evaluation thirty eight c f r four point one zero the v a s underlying purpose is to rate veterans based upon the body as a whole based upon the function or a function of the ordinary conditions of daily life including a point when a veteran is unemployed for five plus years were part of whatever the one percent rating is in this case it was cancer it's one hundred percent rated because of cancer because he had to the v a didn't want him to worry about work and cancer but here there was just no material improvement whatsoever and the board would not be able to factually find that there was improvement when in fact the opposite thing occurred here yet there was no longer receiving cancer treatment but moving forward his his life was irrevocably changed and that's why argument would be in fact that that should not change what we have in the government and the necessary finding was made by the board that page two three three of the appendix what the regulations state is that there must be quote material impairment in the physical or mental condition clearly reflected in the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life the board at that stage two three three made that specific finding basically almost paraphrasing the regulation it stated it is clear from the review of the medical evidence and the veterans testimony that the evidence considered in the reduction demonstrates material improvement reasonably certain to continue under the ordinary conditions of life as the court has pointed out the board considered all of the research jewels here the residuals were in the area unary frequency and your unary leakage and the board made specific findings based on the veterans testimony and also the medical exam which was done in november of two thousand  nine the evidence based on the medical examiner testimony was that the euro area frequency was between two to three hours during the day and once at night and said precisely within the herman of your earning capacity that's what it's geared to and that's why for example although he does have erectile disfunction he he doesn't cannot have an erection that doesn't lead to any compensable rating under the disability schedule he does receive special monthly compensation for that condition but he doesn't receive anything under the disability render your nation my hours wear and once at night and that is precisely within the ten percent disability rating for your injury frequency and that's under thirty eight c f r four point one one five hey what all these questions of the application of the the law to the facts of the case and what i've done is point out the necessary factual finding was made by the board and that being on page two three three of the appendix and the four point one fifteen a and then the board went to the next residual which was the frequency and that was this veterans primary issue is the frequency of urination and that based on the frequency of two to research will and then the board also considered the direct tile in the absence of not being able to have an erection and that receives a zero rating under the schedule and these are the ratings that are set forth specifically under the schedule so every residual was considered in coming up with the overall rating used to a narrow fact or an error of law when there are orange and here we have a person who is experiencing the quality of life and serious incidents would not according to the section have occurred except for this liability which is accepted by the government i understand which are your own are saying that the schedule itself is based on the average impairment of earnings capacity and  the in the medical exam that was done it was noted that he had worked as a truck driver continues to work as a truck driver has been working as a truck driver for twenty years and has to continue to do s and that's what the schedule is based upon is earning capacity except for the extra money that is given for a lot of the creative work and the special one slate compensation that is paid to h and i think you make a point that it's well noted among veterans and their attorneys that the reading schedule and many instances is just not fair there are certain disabilities that are rated low in certain disabilities that are given higher ratings we're not here to argue to just build a schedule today but certainly veterans around this country understand that in many instances the v a changes their ratings on them and ratings where one individual might not be able to get out of bed or lower than another individual who can work a full time job but one of the protections of the veterans are forty are is actually three point three four four and that is when a veteran has been rated consistently with the same rating for five or more years like mr martin was he was given a rating and he knew that because it was rated at one hundred percent for five or five or more years he should have been safe that rating should not be reduced unless there is a material proven in both the conditions of his life and the conditions of his employment and there's that this that she has not been applied here whatsoever at the statue statutory protections afforded to this veteran are not being considered and they're not being given to this so this is in order for you to prevail we have the fin symptoms being model isn't that clear that they're addressing the other of his cancer surgery and not just the cancer i don't think that it's clear dr you know what i would like to see in this board decision what a proper board decision blog i believe so you're on to the however the it however that is almost an possibility here because if they hit that binding that's an impossible finding for the board to make it's not a quibble over the fact that it's a quibble over whether why you think it's no possibility when they specifically went through each specific symptom and rated under the schedule and most of them only one or zero percent grade whether that's fair or not it means that those impulses are very mild under the schedule so why would it be in a possibility because his conditions of life and work did not improve you had he had cancer but he could work and do everything in his life one hundred percent normal the only difference was he received cancer treatments after his prostate had a surgical removal of his prostate is when he started having every single one of these problems he started having your unary problems he started at sexual dysfunction before under the skin all are relatively mild under the schedule r all they are relatively mild but it's certainly that's no improvement it's going from with blowing arrows what's your problem is the improvement is he no longer had cancer and he's not going to die immediately that seems to be a