well i i would say that in d c and i would say he's a he's the kind of law clerk i'm going to miss for three years to come he's become your friend as well as a very  carpenter carpenter appearing on behalf of mr terry it's massive eleanor's the supreme court's decision in sims precludes the requirement imposed by the court below that represented must present all theory and assignment of errors to the v a before appealing to the veterans court rights to the extent that this court's decision in magic day holds otherwise it has been superseded by the supreme court's decision and said so it is does in fact deal directly with a social security case going to and we're going to proceed and analyze a different question we can up you know we review judgments not opinions we can't simply reflect on their deck can we well your honor to the extent that they relied upon this court's the holding in sims is to the contrary that it is no longer a matter of discretion for the court of appeals for veterans claims relative to issues that were not presented below to be considered in the first instance so since there isn't even an interpretation of thirty eight c f r three point one five seven the one as it relates to the nature of the report that was presented and the report that was presented does meet the criteria under that regulation and it's not a question of application of loss of fact it's a question of whether or not when the court below said that the report must describe the results of a specific or a particular examination that or but it is doing so and as the court below wrote it was doing it on the basis of its interpretation of what was meant by the description of a v a examination or report and doing so they interpreted that regulation to narrowly they've shifted the burden from was the type of the report was as opposed to the content of that report you said be a examination of report but that's not really  or well where in that report is there in that letter document letter is there a description of a worsening of his condition well what the report said was is that the  that the venous insufficiency had persisted in spite of prior surgical treatment with the baby in stripping and that this problem has left mr massey with significant pain when he's on his feet for any period of time and it does describe a worsening because it describes first the surgical interventions that were attempted and were not successful and the fact that he persists in having pain when he is on his feet for any extended period of time that is a worsening of the condition based upon the surgical procedures that this report verified had been attempted and had not been successful and that those reports at the very least should have raised the question and s required the board under seventy one for aid to consider instruments are now returning again to your argument that sam somehow controls this which i think to a jury has some good points about it is controlling authority but even if we were to consider extending that social security case and veterans area wouldn't we have to get five veterans statute which often that there's no adversary so we should plan now how does that how does that work there is no adversarial procedure so the veterans always when i didn't know your honor why are we even here today it's not a question of the veteran always wins it's a question as described by the supreme court in henderson that the congress has decided that a from needs to be put on the scale in favor of the consideration of issues and one of those circumstances is precisely what is presented in this case whether or not evidence that reasonably raises a claim for increased so we're going to over little thirteen years of our press event without an on on perceiving overrid because there's some vague non adversarial proceeding well i would disagree that it is a service that so you only thing you have going for you to override i whether or not it's authority thirteen years of our president a regulation to be construed with deference in favor of not doing that i'd respectfully disagree your honor i believe that it's consistent with this c particularly in roberson lutie and zimmer a which talk about the importance of fully and sympathetically developing the record and to look at evidence in the light most favorable to we've had that turn all of that and you're still the only argument you can give me in favor of your says this is a non adversarial percey what's your honor i'm sorry but i don't believe that that it the years of our precedent without an on on proceeding and of a of a v a regulation to be construed with deference and their favor all of that against you and you say that's ok do it anyway i believe that the supreme court it was clear in its plurality decisions that the underlying basis for that decision was the nature of the social security proceeding and that the nature of that social security proceeding is entirely the same as the non adversarial system here and i would suggest even more so and that the supreme court has recognized that the statutory scheme created by congress is to place a thumb on the scales in favor of the vet for them and that's what we're talking about here and that that is a perspective i think you just answer that questions of yes although it took a while to do so at any let me go back to dr laura's question about the particular case we had a a a concurrence that that created for you and that concurrent sentences that the only reason for her current was because she felt there had not been notice given to claim in this particular case we do have noted in the form of the veterans regulations that say a few months exhaust is what you know i do not believe that that's what the veterans regulations say what the right veterans regulations say is is that you may be obligated to do that there is no imposition of an absolute requirement to do so it is suggestive it is not mandatory and to suggest that it is mandatory i good morning your honor may please the court the court the veterans for explicitly said that despite discussing the doctrine of exhaustion that the court would nonetheless consider its argument so the whole issue of whether they had a choice doesn't that then become part of the judgment while that's true no if we don't think it becomes part of the judgment because they did ultimately consider the express issue to be presented so whether they jump through a lot of hoops to get there or not is not really material the question is for this court is the legal question that he then goes on to present and the data addressed this it doesn't it's not they could have discussed a lot of different areas of law before reaching there a of other things that aren't necessary for the judgment to be not a dictum it has to be necessary to the judgment and here it's not necessary to the judgment all that discussion of sense if it's it's not a predicate that they address whether or not to apply their discretion because here they did so they could have just skipped over that step entirely thereby making not turning to that succession issue it's a little odd that that they went interpret the regulation in the first instance rather than say if we're going to have to interpret this regulation we should let the florida interpret it in the first instance or let the v a interpret it in the first instance it's they they went through well a lot of hoops to to do what usually the agency has the authority to do and it's not and the agency certainly would have considered this argument that was first presented to the veterans court if it were presented to the s c but it was never presented to the agency instead in the tires a different argument was made both at the regional office and then the board different considerations were made and then at the veterans court they present this argument for the first time the question is whether the veterans were supposed to do without and this is why the veterans court i think when into this whole discussion of whether it should even consider the argument in the first place and the veterans court of course in this case started to address the issue but if in and it's in line with its jurisdictional batches it says it has to confer upon the service so the veterans court considers this argument the argument that the board needed to consider this an issue because it was recently read by the record as the argument went and the board failed to consider it so the question then for the veteran sportive was an error for the board not to consider that and it is within the veterans court jurisdiction even though it has to look at the issue in the first instance itself to decide whether that alleged error was first of all an error secondly whether it's harmless so the veterans court though it's a kind of an abnormal situation the veterans court appropriately here in the first instance consider the argument if mr massey were correct that the veterans court had to just remand the issue as soon as it came up then that's a free remand in every instance when somebody decides to raise  new issue with the better sport and that as the that in sports way that results and eventually each of these results in a delay in the in the proceedings and having to go back and forth the hamster wheel and the notion that the veterans court system for the better in system that's going back and forth bouncing back to court you need different levels that would be exacerbated by a rule that required the veteran support to in all cases simply remand you need to read all of the details that that addressed of course by this court and can't be overturned by this court mr massey in his brief says the opposite he argued in its counsel argued today that that letter in fact showed where something that's that's that's a factual question this the on this court's jurisdiction because that factual exactly our position you know that's the simplest most narrow way that a court that affirmed this decision and and not reach all these other issues that mr massey tries to raise that are not properly presented this court today the veterans courts seem to do when the board have to read the record before it very sympathetic to the veteran and try to find all the arguments and that if something's reasonably raise they need to address they need to address it right exactly that's so magic comes to the court and  they have full discretion whether to address an issue that hasn't been raised right exactly or are that's that's are reading the veterans court appears to think that robinson says and they that's a page nine of its prevents the better supported itself a court and the better support from has has discretion to consider arguments and generally does consider all arguments presented to it and it's only in the very rare instance as this court explained imagine that the veterans court would say that the competing interests require suggested the veterans what should not consider an issue so generally speaking robinson are allowed with the veterans court to look at a situation where something was really right by the record in the board didn't consider it and say you should but this court made clear in magic that the veterans court can't always say we refuse to consider it it's a case by case thing for either the veterans court makes considering the competing interests of judicial efficiency and the interests of the government as well as the interest of the veteran to have the argument heard and the veterans court i think that's where the votes was important this case explained in such detail how it views its responsibility and none the less in this case consider the argument raised so it's clear that the veteran discretion and decides not to consider an issue then of course this court could review that but this is not that case because the veterans court of course considered the issue raised and addressed it on the merits and there's nothing demonstrated the importance of reaching the issue in this case because there is a genuine tension between measure a and this court's holding robinson if we adopt the government's view that the court below under measured a can exercise its discretion not to reach an issue and that decision is not reviewable by this court and so that renders the holding here in robinson absolutely meaningless because then there is no inquiry as to whether or not the issue was or was not reasonably raised by the evidence and then they come before this court and say that there's no jurisdiction because that's an application of law to fact and that is a dilemma that needs to be resolved here and whether or not th is the one that strayed from the path that said correct we honor that certainly possible and uninvolved decision by this court would certainly have to grapple with how those two decisions do or do not conflict or perhaps they don't conflict at all or perhaps they do not conflict at all but the problem for the veterans and the problem with the circumstance that the veteran finds himself in is that this court says one thing and robinson and  the effect of the magic decision is to defy to allow discretion to the veterans court to evade the holding in robinson by simply declaring that they're not going to consider that issue and that is a problem for veterans when veterans are able to rely upon the precedent of this court in robinson to be able to say that the evidence followed reasonably raised an issue and if they're not able to do that th