please the court alex some behalf of veteran craig jordan of course universe for either of two independent reasons the first pertaining to a misinterpretation of the law with respect to lay testimony the second misinterpretation of the benefit of the doubt rule of fifty one hundred seven like to address the issue of lay testimony first in this case the secretary excluded next evidence based on lack of competency without first finding asking just what went down here i mean this is just i mean you say they excluded it is i read the record i mean it seems that at one point it was sent back by the board in may of twenty twelfth and they are at least the record says the board found that the opinions with the fish and not probative why they conclude that his statements while considered were just not credible so is there something beyond just is there something beyond the statements they're talking about here that he put forward and they rejected because it was incompetent or we just talking about his final paragraph but what are we to make of the preceding paragraph is would you not agree that they did right under your view of the law with respect to their consideration of the statement and the so the next to last paragraph no i don't think so i doesn't that make those loose statements essentially harmless error now the words if it's if it's not credible anyway why does it matter if they found it not to be counted i don't think that's what the opinion says if you had a very clear alternative an even if he was competent we find that he is incredible that may preserve the decision but we don't have here in fact we have the exact opposite how odd what a strange analysis to talk about credibility in sort of a passing reference to credibility and then to talk about competency and to very clearly exclude we have to take the language of threes value and the language says she is incompetent to testify about this it also says in short his claim of two separate finance one mr jordan's testimony is not credible to mr jordan's testimony also quote unquote is not competent so if we see those as two alternative findings  dismissing his testimony why should we reach the legal question that you're raising given that we have a fact finding that due to his contradictory statements his testimony of long term back pain is not credible sure so a couple of responses number one the court would have to be comfortable that that is what actually happened here let's assume that message that's assume that that let's assume that we think that's what happened here look at the court's decision and buchanan chief judge proceed wrote that decision  in that case there was mark below just like we have mark here there was merck as to credibility and merck as a competency and the court did not hesitate to reach the issue of competency to find that there was a misinterpretation of the law with respect to conference competency and would i don't understand what the point is though if we find that you know this is a fact finding that we have to defer to right that we can't even touch the board finding mr jordan to not be credible so what what would the point be even if you were right and we were even to agree with you on the legal question of whether his late testimony is competent what would be the point of any kind of remain and given untouchable fact finding that he's not credible i want to be very clear we're not challenging the fact finding of credibility when we suggest that didn't happen but we wouldn't challenge that that's outside the court's jurisdiction under seventy two ninety two but look at the pruitt case no no i'm just trying to ask you as a can't figure out what's going on here and the error that is that your position that because they made the mistake on competency that perhaps a credibility determination would not have been enough in the board's you had they not statement confidence i mean doesn't a lot depend on what he was trying to put forward here meat we're talking about whether there's an in service connection but he wasn't he didn't put forward testimony about a medical kind of testimony right he wasn't trying to get anything in other than i got hurt here i felt badly in this year right that was the some substance of his testimony that's right so when even look at this paragraph at the end it sounds like this has no relationship to anything he wasn't trying it's what it says is it seems like a canned paragraph that somebody stuck in here because it said he doesn't have the training to render a diagnosis or an opinion of medical causation whether that's right or wrong as a matter of law whether it should have been excluded on that basis he wasn't trying to render an opinion right his late testimony had to do with just what happened less and less what they're talking about in terms of his credibility  i'm having a hard time seeing how this even if it's wrong has any letters any harm because even if there were even if they were if they were right for example and that he couldn't do it it has no consequence to this case because of this kind of analysis in this case he was as the core pointed out he was simply trying to talk about his the continuity of symptoms when he experienced his low back pain and if you look at the court's analysis the court has been very clear and under eleven fifty four and three point three general and canon all the precedents it's very clear that the secretary must give due consideration to these statements and and even for etiology even for issues like diagnosis there are times when a veterans lead testimony can be competency determination about what does that have to do with anything i agree with the point it shouldn't be in here it doesn't make any sense when you just trying to speak to issues of describing his what what issues what which  what would have been included if they hadn't said that yes there were necessarily excluded under the credibility it seems to me their analysis of credibility get rightly or wrongly gets rid of everything he was trying to put forward clearly they consider that evidence wasn't that the same evidence that the case was actually set back because they said it's not clear to us that you considered everything he said we want you to consider it well most impact for purposes of a new medical examination because the medical examiner had not fully and accurately analyzed the record but i think this is and they still didn't satisfy the remain and order because they never got us right which i diagnose and we don't we don't challenge that on appeal that is in the veterans court's decision we're not point of the man yeah i don't i don't dispute i don't spew that but i don't think that gets to a point where the language in the board opinion on remand makes a competency determination the same kind of thing that happened to be can in the same kind of thing that happen in europe out of pruitt where this court remanded for fear that the secretaries categorically excluding later testimony for purposes of much much higher things much think things like goes to the runner the tie goes to the veterans in this case and i want to only sort of trace the arc of the air look at joint appendix seventy two that's the examiner's opinion you first see the error in joint appendix seventy  two the statement is the current disability is only at least as likely as not due to his post service injuries if something is only at least as likely as not to post serious injuries then it's also true that it's at least  discussed no the benefit the doubt will was that actually addressed by the veterans for i don't think it was i don't think it was because i didn't see anywhere in your briefing where this issue was raised veterans court right so let me point you to our joint panix eleven fifty five and eleven fifty six this issue was raised low and i had the privilege of being counsel below i might have raised more artfully but it was raised in the veterans court more importantly the joint panix nine quote shows that would show the veterans court that in fact mr jordan was challenging this application of the benefit of the doubtful from the statu suffuses this decision there's no way to distract from it there's no way to write around it there's no way to describe to discount it it appears in the veterans court's decision it appears in the board's decision if it appears in the original office decision and it appears in the  mean we consider that issue constantly and we constantly my mind the board that they are getting it wrong and that lay evidence is common evidence so how would we not have jurisdiction to review that if in fact they found his his testimony not there is a need to consider the layout and and the medical evidence and that is at page day twenty four twenty five the board i'll quote from the the board's decision a j twenty four the wording noted that it was directed to assess both medical and lay evidence and went on to say citing davidson that in certain circumstances lay evidence may be sufficient to establish medical diagnosis that it went on to say that in these circumstances it's not competent well you know when ali's talking about  how long he's experienced back pain how can that not how can you not be competent to say that well your honor that there are two portions two paragraphs that page of the board's decision one of which as the court's questions have gotten to relates to the question of the credibility but you know we can get to that later because that's the question of whether or not every might be harmless error here but but clearly there's an error in saying that he's not competent to testify as to how long he's experienced back pain well what what what the what the board specifically said is not that lay evidence can never be competent evidence and that is the problem under the court's precedent is a categorical statement counsel referred to the you can a decision the where the board has gotten in trouble is where it says that categor evidence may not be sufficient to establish a diagnosis or causation the board did not do that in this instance well it did find this particular testimony not competent correct it did say that it was not common when it is certain what it said it's not co understanding i think in terms of what the board found in respect and why is it that it can i mean if if the board wanted to say we don't give his testimony as significant a weight as the counter physician testimony that's fine but how can it say that it can dismiss the late testimony completely out of hand as not competent when we have case after case that says you have to consider it consider the competent contentions by the veteran so the this is the same judge that issued the board decision twenty thirteen that we're talking about what that suggests is that the board understood that lay evidence may be  most i'm not so sure how there's how they're different in the sense that if we're trying to figure out what caused a back injury if that symptoms were continuous from the first injury through any later injuries that that nation does it not it does your honor but there are different ways of proving service connection and one of them is it comes under the regulations and there's thirty eight c f r three point three zero seven a where if you have a chronic disease wright as type of disease and it showed to have continuous symptoms that is an independent way of proving nexus and the board in this disk in this decision was considering that question with respect to arthritis so that is an another way of looking at whether or not s connection can be proven so in our view that interpret that page on j a three one of the board's decision when it's considering his contentions these contentions relate to his position his statement that my symptoms are continuous over a period of time  let me see if i can understand this with pathetically what if the veteran during a service was and was in combat was in some kind of firefight experienced a very bad fall and up until that point that are an a very healthy back but ever since that day experienced back pain and ever since that day he never had a good night's sleep because of the back pain and then he s benefits and says i've had bad lower back pain for several years in a row ever since my time in service due to this that fall and i haven't been able to get a good night's sleep in and taking advil you know every single day of my life and then the board well that mr veteran you're not a doctor you've you've had no medical training and so you your late testimony is not competent evidence no that's not the facts we have here but well it feels pretty similar to what we have here well your honor the reason i this case is different from the hypothetical that you're describing is because the board did consider the lay statements and the continuity of the symptoms that he that he was as to competence and lay evidence may or may not is because this one if you couldn't get more categorical that when someone's all they're doing is talking about the extent to which they have suffered back problems and back pain over the course of years for them to say that not competent and and this kind of lay evidence which seems to be the most obviously competent and it's not the company well your honor in the court's decision a chair thirty one in the same paragraph it refers to the fact that he did not have the training the expertise to render an opinion regarding musculoskeletal disorders so it in the board's recognizing is not making an across the board statement about lee evidence in every every particular case for every given case it is talking about competence as applied to these facts that's what make that makes this decision controlled by king i think you're hurting yourself more than you're helping yourself because frankly this is a silly argument musculoskeletal i mean what one more easily could u c l a person being able to testify to you why don't you just concede that there is a problem with the board's competency finding but that the credibility finding is renders that harmless i don't understand way trying to well your honor our position is that the board complied with the applied appropriate legal standard and that the kyng decision is directly on point and what happened in jenin and it's harmless error maybe another way of looking at it but what that what was being challenged there was the apple nation of laws and those appropriate resolution according to government in this case is that because it's the application of law to fight the court does not have jurisdiction to review it under seventy two ninety two now whether or not that were critic described as reasoning better i agree with your honor that there is some loose language in the court's decision but you alternately come down to and below that the issue was whether there was an adequate statement of the reasons or basis for the course decision and the veterans court found that rejected that argument but that's not the art that's been here reading of this paragraph i mean what the board starts off by talking in the final paragraph is talking about his credentials to render a diagnosis or a cop in an opinion as to render a diagnosis or competent opinion is not competent but essentially are you telling us that that has nothing to do with this case because his late evidence was not of this nature and that's why they considered it well you jordan never said i have an emetic i have a medical opinion and i'm trying to as you know offer some testimony about my diagnosis and one can't next question yes your honor i would be happy to win the benefit of the doubt we will get that sentence is not a good sentence find that the evidence was an echo poison of course that then for the got was triggered when you have an approximate balance of the evidence what the board stated on j twenty one is that the preponderance of the evidence fails to establish a service connection and on j thirty four it noted at that in the same page that we were looking at that the it consider the benefit of the doubt rule but found that the preponderance of the evidence was against the issue and the board very did not misinterpret the statute or that rule and the portion of the language that that mr jordan is focusing on is a statement made by the medical examiner not by the book and so what the board did was it simply recounted what the medical examiner said and i think we're dealing with different page numbers i'm does and the board if you look at the examiners decision this will become even more clear on j a seventy two counsel referred to that page the v a medical examiner was asked to fill out a questionnaire and the v a medical examiner checked the medical examiner's report and mr jordan focuses on says very clearly that eat that the her opinion was that the low back condition condition with residual is not caused by or the results were aggravated by activities in military service but is rather at least as likely as not due to intervening work related injuries in other words the doctor is saying that it's there's no service connection but it's at least as likely in or as not due to these post service work injuries but the doctor was allowing for the possibility that there may be some other reason besides these work injury injuries that may have caused his current disability but on the benefit of the doubt argument was not raised below and there's also a jurisdictional if you look at the board's decision it very clearly says the benefit of the doubt rule applies for the evidence is a neck with poise or approximate balance it recognize the appropriate legal standard and problem thank you so going back to the fifty one a seven judge shown your question about the best language i direct you to join appendix nine which is the veteran court's decision that relies on this language and under the court that has was raised at all of these points along the the adjudicatory process from the examiner all the way through now the secretary argues that well there was a charge of box was checked and there's boilerplate language in the opinion was clearly relied on by the the argument is that it was relied on by the veterans court it was part of the decision and because of that this court you know exercising its review function can address that issue i mean the standard is sort of fair notice here it is not an exacting standard and when the only issues in the case involve the lay testimony and this this benefit of the doubt roll in that was the core issues on nexus and we think that the court should exercise its review of  these issues so this notion that boilerplate and merck and checking boxes shows that there was no error the court should reject that a competency determination was made where there was no business to make competency determination clear error of one of the most simple tenets of veterans law section fifty want to seven's benefit or they don't will happen in this case and this is the ten year anniversary of you can in  like that it's also the ten year anniversary of mr jordan filing his claim for benefits in this case and the secretary is still getting this wrong in cases like robinson and assad the court can see where the secretary got it right