this morning is number zero five dash seven one seven four buchanan versus the department of veterans affairs deal of weight crept into the fatal flaw of the lower court was it said as follows it said that this evidence was not just not credible so it was not caught but there's a world of difference between not credible evidence in the comp and on page evidence you have to have someone to actually know this medical it's contemporaneous medical it and that's it that's not in the statute but it's an unrealistic stand because very frequently there is no medical evidence from service demonstrating what the medical problems  between incompetent if i fight a case of trial and i attempt to introduce incompetent evidence is excluded on the other hand if i had evidence that scott that it gets in and maybe not thought to be credible but it's in the record that's a whole different that's a whole different if that's why i'm trying to figure out exactly what procedures here is if you look at page the top of page four of the decision page sixty or brief you'll see there that the moment that the holding of the c i t had been that lay evidence as defined by the statute always requires confirmatory clinical records and without such confirmation the evidence is not credibility it's either it's probative but it's well the one of the difficulties i have your case is that it isn't quite as pure i think we should like to make it although it may end up being that pure after we look at it because you have the c b c talking about all of this long passage of time this these these pieces away evidence reflecting way back on the historic period of time then if you look at the decision of the board in may the board and essence got your client by saying oh we the board have fully we are reviewed the lay evidence or a side and down the other and we put in on one side of the scale great and on the other side scale you know we put we put the clinician ms byrn reporting on the other side of the scale and we think her size scale weighs more than the lamp but she can only problem with that is that if you read loughborough lauder clearly refused to look at the layout exactly so look at our problem i don't think there's any way we can get half aloud given our jurisdictional concha right well i think the i think cap and then he goes now that's different now we don't know when or when or not but we don't know whether he did we don't that is there a statement by veteran and the record anywhere that he actually saw someone so they can know the record is unclear because of his personal hearing veteran doesn't say whether or not he well if she read the affidavits then could she possibly have been saying because of the passage of time because if you're not staleness of the affidavit is your family members thinking back twenty five years she sang i'm going to discount such lay affidavits absent some support that gives them more weight she never says that in her report judge that concept that well they were also you know the discount because of the passage of time you wouldn't hear and the c a v she did you know rubber stamp affirms on them you wouldn't have a leg to stand on would you well i mean i think if now because they would have legally but we can see they're doing something to highlight very hard the theory of that case would have to be a process filed because if this court is going to reach down through the c b c through the media and back allow saying that some examiner had mashed up because of the fact that there's a chance for a cure right for the b b s as qualified as loud loud hard to put the stuff on the scale and judge for it but the level well i don't see a thing wrong with with being bold judged we have a better has pursued this claim fourteen years where i have a little problem with being bold when i'm basically sitting on the top of the iceberg of the water well i don't think i don't think  you're the one that's in charge of our group for the benefit of your client i understand the passage of time is not good but if it goes back to a c v she and you lose on the facts then your dad up here you know that you're right but if it goes back through we understand you can't throw out lay evidence just because he doesn't have medical you know back up but in this case we think we have the lay evidence can be discounted because of the consumer will pass the time b testimony the little testimony however is not corroborated by any medical confirmation we therefore find the lay testimony not credible i mean if it's not credible i won't be believed it means it's been admitted right but it means it will be believed much much take that for the definition of criminal so the legal interpretation of what of the layout i'm seeing as i hypothesized here is that lay evidence that is not confirm my clinical record medical records abuse not credible period if the court were to go that far then perhaps we would in fact  violation of the regulation which states that you have to consider both way and medical evidence but the regulations the way they are designed has to be competent evidence in the way hadn't an avid self is not competent to render medical diagnosis and that's been  used to show that there are actually symptoms of a particular element then it would certainly be confident if you're looking at it from a temporal christic perspective one of the simpson's first arrived that it would certainly be competent but if you're just looking at lay testimony somebody said i had this pain in my heart i heart problem that's not enough that's not sufficient to establish that there actually is indeed a heart condition you need some sort of medical evidence that the safeguard that's in the system is that you have a paternalistic system that's set up for you surely have a slice nobody not going to look at it sorry don't have any co operative medical evidence we're just going to discount it's been apparently credible then we would have a problem there and that's what mr mccann is urging the court actually happened why isn't it but it did why isn't it fair for us sitting up here saying we frankly don't incompetent or not credible because of the lack of contemporaneous medical support if that's the case what's wrong with the current statement of the law in this case and they remain which is all a legal question or a fact right what you're looking for when you're sitting at that point is some sort of possible basis that's what the c b c had to do pursuant to the clear clearly erroneous standard review it had to find a possible basis for decision below the decision t and if you are saying i read it i certainly can share it but i threw it out because it didn't have any medical support that should be problematic not just so you have to look at precisely what the b v a did it didn't well i'm just going to credit that type of report more all the more capital a evidence put it on the scale with lab and then decide she weighs more then it becomes virtually impossible for i guess us you would say to weigh evidence to assign certain amounts of probative value to some evidence over others i mean they have to do that the safeguards the regulations and the statutes state the b v a must look at both types of edits and that's precisely what happened here is now catch twenty two in the same situation the same type of just didn't happen that wasn't the kind of faculty mr mccarthy i'm having is that look at i don't know if you look at me i mean there's no suggestion here that people can necessarily look at it but once you look at it it's a question of whether you agree it's valid to consider it seemed to me as i was listening to your exchange with judge clevenger that what you agreed with him would have been an incorrect statement of law seems to be exactly what the of credibility absent confirmatory clinical records to substantiate some recollection now i guess you could take other portions of the b b a and say well they suggest otherwise but isn't it correct that at least if you take that one setter statement arguably yes but if you that is our job if the lower court talks out of both sides of his mouth we've got to figure out which side of the mouth we thank was really driving what they were doing and we may be wrong in some instances but no other from your perspective other than the cost of the remand i don't know what the government stands to lose with a correct statement of the law of baking remain here i would just seem to me that someone ought to be policing this system so in the confession is on page eleven of the decision page twenty two of the appendix and at the bottom of the page the b v a specifically states after consideration of all the evidence that record the board finds that the opinion  medical document in a wrecker that that stated that there was no service connection was there and was there a medical record in the record there's no medical record this specifically states the negative that she doesn't have love bernie that's the conclusion it's most persuasive because it relies on getting medical documents and records i couldn't find any object the medical records and documents in the records if that were negative i have two points  here first of all i do this court's decision maximum versus go over the mere passage of time when somebody doesn't seek treatment for a condition can be in deep shit that they didn't have that condition time right the other this case is interesting because you've also got one appears to be a loss record situation or the possibility of a loss record situation and there's a body of law that says funk goes on the scale from the matter in a little bit a little bit you know well if you have you have some you know if the government can't produce a record right one response of that made a factual determination that there's no identified evidence that has not been accounted for in the veterans attorney's been given the opportunity to submit written argument the same attorney here that's representing mr buchanan said i want her back to the so there are zero sophos when you get to be see a letter and said we don't have any further evidence  infer there actually was evidence just because there isn't evidence there that suggests that there wasn't any treatment there wasn't any evidence that he had a psychiatric what's right after service i think the question is the statement that you called to our attention that phrase because it relies on objective medical documents the b v a to the v a really mean to say because if he lies on the absence of objective medical documents or they wish they referred to an absence of documents or tangible documents tangible documents that i think that would suggest at the onset of schizophrenia occurred at the earliest at nine hundred seventy so that's how i read what what i wear are those documents in the record there are cited to and the both examiners opinions and time i maybe i'm misunderstanding are we saying the same thing though i mean so that really we're not relying on objective medical evidence the bottom line is the reliance was what was on the lack of medical books i would say objective evidence that the onset was first found in a particular year nine hundred seventy seven and two that there wasn't anything to suggest that it occurred earlier and that's what they're relying upon in terms of just again this just shows the problems in this court with having a gauge in paschal determinations we don't and if there is a nice as i think you've agreed if there is a circumstance in which a category away evidence of simply being rejected either as incredible or incompetent or whatever you want to call it because it doesn't have confirmatory medical records you said there would be the wrong thing that's correct is defo thank you thank you mr money you have your bottle yes yes yes you have your full