new service department or previously undiscovered service department records there is nothing in the language of fifty one eight that limits the submission military evidence as a consequence we believe that the interpretation offered by the b h regulation evidence results in retroactivity but i think that's what i was trying to go to is it's a misnomer to refer to the director can you answer the judge's question correctly ok the other evidence would be  question was what new material evidence other than the average cited in regulation will produce retroactivity and material evidence correct that is correct so why wasn't it rational to apply that concept here as well because the reopening of previously denied claims do not all deal with retroactivity they deal with a staff issuing the right that under the thirteen eleven and thirteen eighteen that there was a service connected deaths or there was a total disability for more than the predicate number of years under the respective term limits within thirteen eighteen b and when you dealing with service connected death you're simply trying to establish by reopening that the condition that caused the death or substantially contributed to the death was in fact inside of the bin service connected and if there had been a previous application for a service connection or a finding of entitled to compensation for that benefit and the survivor under this scheme should be entitled just like establishing that there was a clear and unmistakable error should be entitled to submit  new material evidence but across the board in order to be able to establish either a service connected death or as mr forensic test of that if addition was secondary to an already service connected condition based upon a previously denied claim correct and but in terms of the congressional and v a look at the purpose of the entitled to receive language that was added to section thirteen eighteen thirt interpretation which is shall i say hostile to the veterans when an equally plausible but not selective interpretation would be nice hassoun favorable to the veteran  recruit not entirely sure i understand what russia has although i i suppose of the best way to respond to that is to say that we know what congress intended to do this and so they came up with a reasonable regulation based on it could have been broader well yes any any remedy which grants greater benefits within seven years and a separation separate he wants to come in and make that show because he'd like to get present the service connection for the m s as though it had incurred a service and he files his claim and he's got some evidence but he the and the board are on the board rejects him on the ground he has not made a showing that he has an ass that ten degree temperature sagamore ok with a seven year period but there is a medical record at the v a hands that actually establishes that point but they couldn't find it or was lost or something wouldn't his survivors widow be able to come in and make a very icy claim based on the medical records a didn't exist at the time he made his claim for presenting a service connection as yet it is it's well it's new evidence of the medical kind that your regulation will allow to come  besides he would have the same type of situation where the person came in and asked for presumptive service connection and was turned down on the grounds of the medical evidence that they that they had better brought forward didn't show the necessary  disease that's associated with exposure and herbicides even though there may have been a record somewhere hypothetically in the department of the navy that you i would think that in any of these indirect association cases if someone could was asking about evidence it's not in the government files that position private files that i couldn't come in no matter how good we did well right it wouldn't be sufficient and it wouldn't  suggesting that past violence from the government who do assist which prevented the clean the matter from the developing evidence in the past might be a situation that required retroactivity right that would be a governmental error a violation of the duty to assist in the past which prevented him from developing evidence and in the question would be if there was a violation of the due eagerness if that is a p agency obligated to have this window open for new and material evidence of this limited type government era now take the agents what d h did  decision because the effective date is always good for all but it one ten eight fifty one and eight only permits they d i see a claim being awarded from the date that that claim is made or with a certain