years or eight years as a programmer at microsoft before even going to law school he went to n y u after law school he clerked for judge greenwald when he was a judge on the court in the northern the court so he's had a lot of experience and now he's had experience with us and he's been a pleasure to have around and has really added a lot to changers so i moved his admission the court this is a peel involves a single legal question did the veterans court use the correct test when it applied was the case doctrine to avoid considering miss unwise arguments the answer to that question is now under section seventy sixty one and indeed the government's own description of the law of the case doctrine and its brief the veterans court cannot apply the law of the case dr and to avoid considering a new section seventy two sixty one clearly lays out jurisdiction for the veterans court says the veterans court shall set aside factual findings that are clearly erroneous and then section seventy two and also includes a number of expressed exceptions to that statutory mandate there's an exception the veterans court does not need to consider findings that are not material the veterans court does not need to consider findings that are not necessary to the veterans court decision and if they were not presented by the veteran but the statute does not include a lot of the case exception to the veterans court i know it mouthed the words law of the case but did it really apply a lot of the case and say it couldn't go back and reconsider it or did it say we're just not going to rethink something we already did the veterans court said that it was applying the law of the case to avoid consideration of an issue that had been previously due to cait and it never considered whether those arguments were the same and if it had the arguments were different and so the analysis of the veterans court applied and its first appeal is in a plea coupled to the arguments the veterans court made that ms anwar made in her second bring in its analysis from earlier that analysis would be in a political to the arguments of veterans court made and under the express statutory language of section seven to sixty one that that's not permitted because the veterans court needs to consider all of the decision that the patterns court reaches with respect to a particular claim no offer of course of the veterans court reaches its final decision there will be finality but also the statute includes these these escape valve for example the materiality escape valve can be  cited to us and we're not going to reconsider that's just report writing it's analysis from earlier that's true but it only applies if the argument is the same it seems to the moon computers but what you're saying about the argument the same because it seems to me you have the legal issue that they can't use law the kitchen case at all mr one your reading of seventy two sixty one but then you're going online and it seems to me you're suggesting they use logging case in correctly is that it's a different argument i think they're related arguments the first is that they can't use lot of the cases at all and the second is well the case as applied to that particular facts here it was done him properly in the second would be that they applied the wrong standard for law the case assuming that what wrong standard to apply they only considered whether miss on was had made a result that sees me they only considered whether miss examination right because they found out that it and they concluded that it wasn't adequate and her specific exact her specific arguments related to that examination were that among other arguments was that it is there there is no evidence of disability and her second are her second appeal she challenges the same the same examination and the adequacy of that same same examination but she never she raised  new argument and she she chose a different factual finding or excuse me a different different statement of the examiner in that argument specifically whether  specifically whether the the the the examiner statement that there was no evidence of service connection was correct and so those those are two separate arguments in the veterans court never consider that second argument and under section seventy two sixty one and also the government's conception of law the case it's description of law and the case in its own brief law the case  only be applied to arguments that have been previously raised not to sort of on this issue by issue basis and i think there's a i could sense that there's a little bit of confusion maybe when i say that this is the government's task for a lot of the case and it's different versus whether one of the case should be allowed at all and here are the cases not appropriate but in practice as the government describes l case that would be in different situations for example of miss ana had actually raised the same argument that maybe the veterans court use a lot of the cases a shorthand to incorporate it analysis from earlier would have been essentially harmless because it would have already considered that argument but that's not what happened here let let me assuming they can apply the law of the case the second question whether they did it properly isn't that just applying the law to the facts and something that we don't have jurisdiction to review i disagree the second question is actually what is the proper test for law of the case for the veterans court to fly and that is a question  as to why there is no liability those that were here consider those new arguments there is some case law that suggests that outside of the bench is quite contacts it is on an issue by issue basis and so that the challenger can't raise basis that's correct and the reason for that is section seventy two sixty one and then of course the the policy considerations underlying law of the case are different in the context of the veterans court than they are in the other mother the like what for example the finding of the requirement that the veterans court shall consider factual findings unless they are necessary to its jurisdiction or unless they are not exceptions in the statute suggest that congress actually intended to define the veterans court jurisdiction with more precision than in a normal case such as the better course or anything in the legislat history to suggest that they're they're adopting of their area rule of law the case well i think your suggestion i think that the language of the statute is enough you don't need to reach the legislative history here with  we assume that congresses and legislation of that place i think you typically would except in this case the statute does include all these express exceptions that define the jurisdiction much more narrowly and how does that work in your favor if we think that congress is and have to be different rules for the veterans court by knocking these exceptions and don't you think that if walter is to apply they would have put that  principles so for the ones that they don't appoint put in don't we assume that congress intended general principles to apply i should be clear here they mean isn't that clear from the supreme court decisions and sanders and and common law principles for example this requirement that a finding it be necessary for the court's decision were presented by the veteran the requirement that a the factual finding of this challenge be presented by the veteran suggest additionally the presumption that they do not apply in this context if there are no questions i'd like to reserve the rest of my time for rebuttal ok properly apply the law case doctrine were actually raised and addressed by the veterans court in twenty fourteen first with respect to the statute and nothing on the face of the statute requires the veterans court to keep would necessarily include a review of the evidence purportedly overlooked what the veterans court here in twenty fourteen are saying consistent with what the examiner said in their opinions inconsistent with what the board of two thousand and ten state specific analysis that the court needs to do the second point i would say is your honor referred to a case by the supreme court i would refer this court to the foresee or say on block opinion from two thousand and two in which the veteran urged this court to adopt a more lenient standard for waiver in this court declined stating that and that respect the veterans for shouldn't be treated differently from any other court and then rejecting that or human error or in making that determination the court rejected the argument that the proclaim the nature of the v a administrative system to compel this or more lenient standard so i would to answer your honest question i would point to court cover all the arguments and so i would prefer the court also from this on was briefed on that matter but the reason why i brought that there are plenty of law that says you don't apply law the case if an issue wasn't actually presented then consider veterans court instructive that a veteran can receive only one rating under a diagnostic code fifty two ten it's said that the board no matter what the veteran said henri man that the board could only award a fine while the the court in duke is now respectfully your honor instructed the board it struck to that the board had to follow the law the case of the veterans court in that situation the veterans court said only one disability rating was available but really the issue in the arguments here is a saying in two thousand and fourteen the veterans court addressed an argument by mr onlies that the examiners had failed to consider the evidence in the record that she believed supported finding her disability to be service connected with basically pursed her own statement in the statement by her doctor from two thousand and nine in two thousand and sixteen the veterans court addressed the very same arguments on why contended that the examiners had overlooked those same statement she just cast yardman and slightly different way of saying that whereas in earlier she had said the examiner didn't recognize a disability at all in the later argument she said the cameras didn't recognize i didn't see any evidence to support  statements that a service connection existed for her injury or for her disability and so what the the she in both appeal sort of veteran support she was pointing to the very same and the veteran scored twenty fourteen said no and if the court agrees with us at this point we submit the only thing the court has left to do is miss this appeal for lack of jurisdiction because we are getting into the application of lot of facts which forces court last jurisdiction to review to the extent the court considers the merits of of the challenge to the better of course application of laws of the law of the case doctrine the veteran's court did not decline to consider any just the statement of somebody else who's claiming an injury that in other words that's that there is a material difference between in terms of the way it should be given to her statement regarding the connection service connection if i understand the question you're asking is in two thousand and fourteen she argued whether her or her own statements should be given just positively or or more probably i believe so i want to look to attendants under the heading nexus between the veterans service and disability there is an entire paragraph where she describes the evidence that she believes the stablished of the service connection is included in that paragraph as her own statement  of her disability being service connected so it was certainly an issue that the veterans court twenty fourteen was aware of but in fact the veterans poured in twenty sixteen did not apply the law new arguments in her second appeal you can see that on a p x three all it considered was whether the issue had already been adjudicated based on that the proper remedy here is really mad there's no need for this court to consider whether ms on was two thousand and fourteen argument versus or two thousand and sixteen arguments were different whether there were new factual findings by the board that is a question for the  the proper standard for laws the case whether it applies to just issues or whether applied to arguments and they applied the law of the case as if it precluded an issue by issue basis not an argument by argument basis which under section i would yes i think that probably the correct thing to do would be for a firm because there has been a challenge to the test site but that's correct so given that the  assuming that you agree that while the case is on that argued by arguing basis the correct the proper decision is to remain and so that the veterans court can determine whether ms anwar raised a new argument in her second appeal for this reason we request the court remember this case