ask evidence that they're happy improve all that is called upon by the statute and the regulation is to show that it was factually ascertainable the discussion about a different standard frankly is it relevant to that which is evidence that was presented from the social security administration that this man had been receiving a seventy percent rating from nine hundred seventy one the perfect date night in eighty nine had been receiving social security benefits for the same  and able to work granted under the standard of the social security administration but that was evidence that it was factually ascertainable that there had been an increase and an increase that related directly to the basis for the difference between seventy percent rating and the one hundred percent rate which was that he couldn't work all that was at issue was is cutting work or could he not know if he couldn't work and there was evidence that he couldn't work from nine hundred eighty five and it was actually ascertainable that there had been an increase in the severity of his disability in that one year before as determined by the social security stand that backed director and part of what we are asking for is simply that the court finds that as a matter of law that the board was required to look to determine regardless of what that standard was did that standard stablish under the terms of the statute in the regulations that there had been an increase in severe but you really requesting for a q type of analysis and because of the factual determination was made by the s s a and the conclusion of the stand that they've used is somewhat different than the standard the v a s require the v a is not required to conclude the same results from the same no but they are required to consider that evidence as it relates to the ultimate question which they did well i don't believe that they did all they said was is that it was a different standard and because they said it used a different standard that they were bound by but that's not the question whether they're bound by or not the question is does is factually a sample of that increase have taken place he's already been established as meeting the schedule the purview is what the evidential really parameters are of the statute in the regulation can you use evidence that establishes an increase in the that and that's not the issue before this court is whether it was or was not clear and unmistakable or the issue presented below was simply did the bore rely upon a misinterpretation when it reviewed the two thousand board decision concerning the criteria and why looking for simply a statement of the firm and as you just articulated that certainly you are entitled to use that that doesn't mean i win but simply that they are required to have considered that evidence to determine whether or not that made it to the q standard forward vision of the two thousand cannot engage in any of the evidence that obviously is not the case here and that is not mr linden's argument mr london's argument which directs its directed at the board's waiting of contradictory the very first sentence there that the social security administration uses a different standard for evaluating a disability is discussed by counsel there's always that with the word agent because the evidence of record including the opinions vary best when mr forty the board acknowledges the argument regarding the social security administration determinations and at the top of page forty one the board makes the observation that social security uses different standards and then goes on to social security rendered its decision which found the page seventy seven of the records found that he hadn't met the social security standards since nineteen eighty five and of course the v a is looking at the  and what bothers me in this case is that is the word factually ascertainable and those are kind of unusual words and they don't don't appear in the other part of all phrased in this language that is directed at the v a making a determination so for example in fifty one ten k we see congress directing that an effective date should be fixed in accordance with the fact opposed to evidence that would suggest that whatever the condition was it didn't just happen yesterday it must have happened earlier i'm i correct that the v a said we only look to the evidence that we had in our files years prior it doesn't have to be that the the v a is not saying we had to have evidence a year earlier that would show to us that there was an increase that was more and they're just saying based on the evidence at the time we determ be a problem with the different standards if what v eight was required to do is look at the evidence that cause the s s a to to go to an and earlier days do they have to really weigh in the evidence beyond the the evidence that shows that the condition started at an earlier time you so it's more is it more limited what they have to look at under this actually ascertainable standard because all they're trying to do is come to the earlier the it could possibly be more limited but only in the following respects the a were to look at the other than that one year and one month prior to when the claim first and then file and they find in the record all the evidence that made the determination that he was disabled in finding out whether a condition existed would be strong evidence that maybe that his condition went back five years if he was completely  could be even earlier than it has already been set and that is it's a new it's a full sustenance of all of the evidence of the record for that to see whether there's an help the veteran but here it's going to be weighing the evidence against the veterans determin issue under fifty one can be two which is was there or wasn't there evidence of an increase in the one year brought in that entire paragraph that the subject is not discussed in the entire board decision that subject is not the sky in fact their conclusion is the above supports a finding that the same evidence before the board and the s s a could be interpreted so as to result in a different conclusion about employability that's not the question but certainly they could result in a different conclusion about what i'm going to build the question