proceed thank your honour's me please the court this appeal presents a clear cut legal issue and that is whether or not the veterans court use the correct legal standard to identify a defect under the applicable regulation in this case did the board of the veterans court suggestions or regulations because you need that for a while and so i don't believe that they express lee interpreted the regulation the nine hundred forty six regulation your honor our argument is that they didn't apply any standard in this case the question was friends with there was q in the nineteen fifty four reading decision correct that's what we're that's that's the ultimate question at the end of a break here before that this court i think  if they stayed in the law and accurately i believe that would be q q can arise from the agency's failure to consider evidence that was properly before it or that the agency's error in applying the correct law that exists at the time so if the agency in one thousand fifty four had applied the wrong definition for defect in its analysis that would be to you if the if if that error changed the outcome and the government argues while they may have interpret the facts of this case as a defect and is in your argument well i know your argument is they didn't use any standard but assuming that the government was right that they use some standard key in an injury versus defect they would your considered all of that evidence come out the way he did was that he interpreted the word defect in the regulation at the time as including degenerative conditions correct i think that's right i think that's right here everything else you want to say  the general counsel's opinion which we endorse you know brian retroactively i think that's the government's argument is that jordan says that ok and what i'm trying to wrestle with is how do we resolve the question of retro activity here because on the face of it it would seem that jordan and o'brien are intrusive spent ok they're both at the same factual scenario of somebody who q decision a subsequent change ok and i'm wondering how we resolve the here because you know there is no law that says we have apparently conflicting cases we try and resolve th critical difference between jordan and o'brien that's also evident here in this case and i don't think there's actually a retroactivity issue here in this case because like in jordan we have a regulation that at the time of the original decision had not been authoritatively construed and that's in contrast to jordan where at the time of the original decision in jordan there was a regulation that had construed the the statute that was at issue in jordan and so that regulation was the effective binding construction of that statute at the time of the original decision in jordan and then when that regulation was later revoked in jordan that was a change in the law and so that change was not retroactive and and did not affect final judgments because at the time of the judgment the original final judgment in jordan there had been a binding construction of the statute issue i think your personal recollections you've accurately set forth interpretation was wrong i think your honor i think if you look at the interpretation it was ultimately perceived to be correct in a brown hand if you assume that the jury at the original time of the original decision one hundred fifty four came to a different conclusion and concluded that something that's congenital for example can be a defect or it is necessarily the fact that was held to be incorrect and o'brian so even if that even if you assume that that regulation was ambiguous at the time the interpretation that right i mean that not just the general counsel's opinion said affirmatively it doesn't but there's never been a case that i'm aware of or any announcement where the government has said it does so there is no conflict in the later holding it's overruling the earlier ones are correct that's right now i don't think the government's argue that in this case either and in addition to that isn't it the case that while we found the same thinking with this we would not have permitted a plane the iranians conclusion and nothing you know brian suggests that the government had the choice to come out either way and it wouldn't have been playing your brilliance if they had come out the other way that's correct in fact so this corner branded site hour and talked about the general counsel's opinion but also took here from the government  and i did not have an answer for that your honor wasn't the government assuming that he had a strong back when it made those assignments if mr cousin at the time of his entry into the service that he did not have a back problem are you asking us to make a fact finding about what those x rays could be rude to say no your honor are we permitted to fact finding that was made about what they said no your honor did the board find expressively that those exact x ray somehow disregard the board's first fact finding that you know you are and i apologize if that is the way it came out we are not attempting to get the court to make a fact finding because certainly and that's why this court  but reversible with respect findings we are not requesting that the sport reverse the board's fact finding we are we are requesting that the court find that has no jurisdiction because the fact finding of the board degenerative condition correct yesterday so when the when the reading officer decided in one nine hundred fifty four that he wasn't entitled to benefits despite the fact that he had  know that answer your honor however mr cousin was shown as a symptomatic it just charged regardless of his permanent profile he was not experiencing any acceptances mind and we mentioned that that may be the case your honor but here  is not will not manifestly change the outcome of this case because mr cousin was asymptomatic at just charges as your honor correctly noted multiple times this court does not have the jurisdiction to three consider f findings and to interpret whether the the board's decision which explicitly found that mr husband being asymptomatic at discharge and that the one thousand fifty four r o which included a physician admission and you would like me to interpret the one hundred fifty four rating i mean i don't see how to interpret it other then the word defect is which is the only way he is not compensable under these circumstances includes degenerative conditions is the government alleging that it would have been reasonable in one nine hundred fifty four for the rating officer to conclude that defects include degenerative conditions i've never seen the government take that position in fact  opposite position in every case i can find going way back but are you no telling me you would have been reasonable it would not blame your own yes if this particular rating officer decided that defects do in fact include degenerative condition what the government is is asserting is that considering the record as a whole with the benefit of the physician having reviewed all of the records including the one hundred fifty four fifty three x ray which stated pedicle defect as well as  and it's not the record as a whole the government does not contend that including the street has cousins medical records does not show that mr president presented multiple times with back sometimes between nine hundred fifty four and i believe the first time that he requested service connection hundred seventy nine and while mr cousins certainly has at times presented with back problems and has gone to the v a with that there was no service connection until december two thousand and twelve which records have sufficient murkiness a few well that demonstrate a reasonable fact finder could determine as the nine hundred fifty four board r o did that he served but you have because you're on art months depending on how you determine months months could be one hundred twenty months two hundred forty months there mr president pointed to nothing in the record that shows between the time of that followed i do not interpret that as stating that the months are necessarily within one to two months after he left the service nor with and one year as with and mr bryant's cas to me but that was also before that the decision and while he may have filed in one nine hundred fifty four wire for his claim he was discharged from the military and i believe it was september nine hundred fifty four that question has been undisputed in this case it was not disputed before the veterans court of the government to bring bring that as an argument for the first time on appeal here we think that's inappropriate it's also inconsistent with the permanent profile was assigned at the time of his discharge whether or not he was symptomatic of the time of discharge i think that was because the treatment he was prescribed was working so that the permit profile kept him from doing these activities like bending and listening yeah and so it's not surprising that he was  has discretion to proceed and resolve the issue when there's an undisputed record and the result is clear if the correct laws applied and i think that would be a unique case because there are government concessions regarding the facts leave his wife might be able to collect them and she's also at an advanced age as well so that they could ultimately occur and as the court knows the v a s adjudication process is not known for its speed so this might be a case where reverse will be appropriate ok thank you very much