good morning everyone we have five cases before us today three of them being or i cued and two of them being submitted on the breed just for the record i will note the two submitted cases the first one is number two zero zero eight dash three two five five joey versus the department of housing and urban development and the second case is number two zero zero eight dash three three zero five again joey versus the department of housing and urban development again those two cases are being submitted on the briefs the thing about medical judgement is not not in that state i think of you also look at five sixty three you also point out that age the border rely exclusively on by itself is enough to rebut the presumption with that that may have been the a q but let me let me braden a little definitely if you think reading your opening bring it would have been clear even to the troubles me about the opening brief in the quarter fields for veterans claims is that it seems to assume that as long as if dr kill kinney's opinion had been emphatic enough regardless of whether in an opinion or a judgment any of that that would have satisfied the standard that you are suggesting to the court and i read to you from five sixty five you say had had his opinion been clear i e undebatable then he would have simply omitted the it is likely it's not language which suggests to me that the argument you're making is predicated as much of the rest of the seemed to suggest on the problem with the it is as likely as not whereas now you're focusing on the problem that this is a medical judgment and that under the regulation and by extrapolation based on your history under the statute medical judgment standing alone is in the factual basis that the content of his opinion the fact that he used the terminology least as likely as not was not sufficient and i have to admit that was our primary argument in our opening brief  medical judgment well it's not as mean i suppose every medical judgment and body medical principle at some point yes but there is a difference between  could not have been aggravated services because the course of the condition is is well known that's an opinion but are you saying that that wouldn't be enough yes that's medical judgment well but   versed doctor who is very conversant with these medical principle and he simply giving you an opinion which although not expressly based on these medical principle and examine that put it all differently well why does no you normally do i mean it's if you do you people rely on and follow the advice of doctors who after conducting whatever along well the statute you say says it i mean that's your that's that's your interpretation of the statute predicated on the legislative history there's nothing in a statute that really shouldn't what a low thirty two which does talk about medical judgment right but doesn't have the medical judgment al if i could turn your attention to the regulation which well everyone interprets the statute is saying there's no doubt that the medical judgment alone exclusion his found in the regulation that's my question though is this  the regulation up until two thousand and five if i understand correctly referred only to the inception part of the two part inquiry at that point the language  in three point three zero four b had not been added it's as was not aggravated by such service that was added to make sure that cleared in understandable evidence applied to both problems but what it strikes me in reading three point three zero four b won that that language does not seem to apply to the aggravation product seems to apply to the inception problem and i direct your attention specifically to the sentence that says  all history of pre service existence of condition room blah blah blah would be considered could gather with all all other material evidence indeterminate nations as to inception and then the senate's determinations presumably these determinations we discussed and finished referring to as good separate should not be based on medical judgment alone as distinguished from acceptable acceptable medical principles why isn't that regulatory language limited to the inception problem and not necessarily applicable to the aggravation but i think there are two answers first in the pre the first part b it does refer to and was not like that was a change which was intended to end successfully until it had the effect of bringing the clear and unmistakable evidence standard into aggravation yes everybody agrees that the question is did they also somehow implicitly other context that are dresses this question and whether this is limited to inception as opposed to aggravation i'm not ok yeah thank you mr hicks you're into your rebuttal of the restore your full if i could start right off on the question that i left off with the subjects what would be is the government's position with respect to the application of three point three zero four b one as to aggravation specifically the medical judgment sentence you have at the government's interpretation is that although i think you are right that three zero four three a three point four b wine just technically establish that the medical judgment standing alone provision applies to both clauses and if so textually where do you get that your ire up the government and concerns in the legislative history was apparently what was happening in world war two was that people men and women were being brought into the armed forces very quickly you know turned over her battle basically rundown series of cases dealing with army regulation that address disability retirement and use exactly the same formula that is to say based on medical evidence but not medical judgment alone and in the course of what troubles me is there the court said well medical judgment something that couldn't be considered were include something that was not based on well established medical principles such as and including an opinion given by no less than the surgeon general now if that rule is the right rule to apply and whose cases are binding on us and the language is identical then it seems to me very difficult unless the a is clearly indicated in some fashion that would be subject to our deferring to that a different meaning is intended with respect to this language in this regulation that that we ought to be bound by that  argument raised by mr not was not raised a lot and therefore the veterans court itself which hears only about its cases which is the acts part and that are its law has not had an opportunity to physician and it and the doctors administration same help please review the file please talk to this person please do an examination please give us your medical opinion and so what's whirly is being asked for here on mr and the knocker is a decision that that that handy and it comes back from a medical doctor could not be relied on oh no not exclusively it couldn't be example in this case why there are there is actually simply a matter of opinion or not let me ask you this did to make sure you may have answered this question ari but i want to make sure that we're not overlooking anything with respect to but poor today because you know you know if we're looking at deference we don't deprive as readily to a position taken by an advocate in the middle of an appeal saying well this is our position well it's convenient to take such a position because that allows you to bring the case to predict but if there is a past pattern construing the regulation in this way than that something to which we can defer is there in this case and if so what is symmetrical judgment alone so the of the term opinion in juxtaposition with the word judgment you think is the way that the secretary is seeing that judgment is exclusively that of the non medical profession yes position here she has examined the complete record and has looked at everything in the record from medical standpoint as conducted tests of the veteran has reviewed all the service records then that position says it is my considered medical judgment that then goes on to articulate the view in that case you wouldn't say that that's deficient simply because  word medical judgment is used instead of opinion with you because the words are coming from a position this is your view is what you've been discussing just present ok yes now what  the the veteran who's examined by this physician has a condition that the physician cannot confidently diagnose but the bishop position says you know i'm not sure what this is it's a very strange condition we just don't have a good there's nothing in the treatises in the experience the medical experience that really pins this down as to what it is but i've been a doctor for a long time and it's my opinion that this is a condition which has probably been with this person for a long time no medical not based on any medical principle at all let's say and then the doctor admits that but since that's what my opinion or he might even say that's what my judgment is is it your view that that if that's all going is in the case that that is ok it's official to support  that we're not arguing that the government can't rely on medical we're not asking the court to reject the opinion it's our position medical judgment the doctor's opinion alone is not and i'd like to just point out this is a very strong presumption to favor the better it applies when this preexisting condition is not recorded and turns and so the government does has to have to jump through hoops and go pretty far so we bought this presumption and that's why there has to be clear and unmistakable evidence and when medical judgment alone is not enough the government can prove we're not contesting the preexisting condition on this case for example because there is evidence beyond the doctor's opinion there's evidence supplied by the veteran himself that it was an accident and so i think that's clear focusing on just medical judgment alone to go back to whether or not we raise this issue and  our opening brief the issue of whether his opinion is sufficient i believe it was fairly i'd like to just point out that the government and its brief did say his opinion was based on medical judgment hockey his opinion is based on medical  and its side of the regulation three point three zero for the law and in our reply we replied to the government's brief pointing out that medical judgment along was not sufficient under the statute so there was an opportunity for for veterans just the doctor's opinion here i think if you really look at it for sixty two admittedly the doctor examined mr america but when it comes down to his opinion he basically says in patient dictation only the condition may get worse and that strikes me as being a purely medical judgment and not based on an examination or any other evidence of the patient and can make sure that i've got your position right  with respect to what it takes to cross over from established medical principles to medical judgment if the doctor again to take the i forget the name of the case the gonorrhea case against john john