he and with me at counsel table is lindbergh man you know the privilege of representing us marine corps veteran josep frank the petitioner in this case today and we asked this court to set aside the veterans court decision because the veterans court exceeded its and already buying gaging in fact finding in the first instance and it misinterpreted the prejudicial air standard of review that were in the statute thirty one items of evidence that the board overlooked or mischaracterized the proper thing for the veterans court to do was to remove an escape back to the board for reconsideration of the evidence  did not abrogate the prohibition set forth and chinnery and in the house it was clear that by looking at the evidence outside the board decision that the veteran had actual but i mean it's a sanders shinseki in sanders the supreme court they reversed that they said we were being too rigid about the harmless error test and they suggested that we should be concerned that the veterans court to properly consider all sorts of different things and that we should leave it to the veterans court to some extent to determine what they should consider in connection with a harmless error analysis i have difficulty in seeing that the rigid rule that you're suggesting is consistent with the set forth in sanders and to examine each case the specific factors in each case to form an estimation of the likelihood that the result would have been different and i what they did here is that what the veterans pointed here know your honor it did and what the veterans court did here is that it's excused the board refute overlook oversight of thirty one items available evidence of an higher rating in favor of the board's discussion of other evidence so in essence what of what the veterans court was applying is some lower standard of prejudicial air and not an actual estimation of the likelihood that mr frank would have prevailed had the board's been privy to this thirty one instances of increased symptomatology isn't that really the standard that applies across civil and criminal that the question is whether or not the result could have been different and whether you use that overwhelming evidence of of the contrary conclusion or guilt depending on what you're looking at or you use the standard that says the jurist is left with a firm conviction that the the result would have been different if it's still a question of looking at the totality of the evidence and and applying some standard to it cracked yes your honor it is and under thirty eight u s c seventy one should apply the prejudicial air standard and look at cases for harmless error but that it should apply the correct standard in doing so in here in order to fly and for us here the veterans court excuse the oversight of these additional thirty one instances of increase from two mythology in favor of the board's discussion of other evidence so as i stated already there was no finding  and no discussion of would these thirty one instances have made a difference in the veterans claims but when you say that they discarded it in favor of this other evidence they basically said looking at all the evidence we don't think that their conclusion with was wrong correct they did not say that your honor in other words are important they might have not used the phrasing that you want but but i don't see them actually using the phrasing that you say they did which is we're discarding all this evidence and just saying there's enough there in the record is that how you think they decided well i'm looking at the veterans court decision your honor the veterans court did say in light of the board's extensive review and discussion of evidence for it the court isn't persuaded that the board the mission prejudiced the appellant so i think that the veterans court there was a it didn't matter that these thirty one items of evidence were not considered by the board and discarding them in favor of the board's otherwise extensive discussion of other evidence and not applying what sanders anticipated which was that the claim could be remanded the board could consider everything applied her pondering for the evidence standard again and looking at these other thirty one pieces of evidence there that the rest of the evidence overwhelmingly supports the board's conclusion and that no fact finder could reasonably come up with a different conclusion would that have been ok then i think your honor we would be presented with a similar decision is the veterans court meet in bogan and i think that had the court said that it would have been more clear that they were applying the correct standard here  brevity of their discussion it's not clear this is a pattern of problems that the veterans court that in terms of their application of the harmless error standard this that they appear to to apply to low of burden honor i can say in my experience yes and i also feel that this is an opportunity for this court to set some guidance for the veterans court on where and when their harmless error a starts to infringe on inappropriate findings a fast and real weighing of evidence and i think that this court did so in the village case and that this is another opportunity for the court to make those parameters clear and to set the right and left lateral limits of where harmless error and alice ends and in appropriate fact finding in excess of an appellate tribunals authority begins so for that reason mr frank that this court set aside the veterans court decision and dreamy and it for a new decision veterans court should be looking at how could the v a s failure to consider this thirty one items of evidence that weren't considered have mattered how could how should the decision have been different and in this case it is clear that given over sides of all of this extensive evidence of increased ratings symptomatology that the decision could have been different and that there's there isn't overwhelming evidence against mr frank's claim here and certainly there is an overwhelming evidence against a claim if we only look at the evidence that the board that that would be a factual issue for the board and that's why we're asking that the veterans court not make the actual findings that the board make that that actual finding and here the veterans court went so far as to really weigh all of the evidence and say even if we considered all of these thirty one instances that you pointed out in your brief that the board didn't consider we're going to say his symptomatology was only moderate else with the veterans court applying the prejudicial fair standard how would it apply it i mean you're saying that it's wrong for them to weigh the evidence to determine whether there was an error below that might have affected the judgment and i guess i'm asking you well how else would they make a determination of whether there was prejudicial or certainly other than by weighing the evidence your honor there are certainly circumstances where  find an error harmless even when it involves circumstances similar to mr craig and i would point to a circumstance where there is medical evidence in the record that states that these symptoms were attributable to anno service connected disability and therefore it would be harmless that the board overlooked in regard to his p t s d claim it was a trivial to a disability that was in service connected or if as previously mentioned if the honor i would disagree that that the veterans court is supposed to relay the evidence and i would point to the language that this court set forth in duluth which was that the veterans court must review the board's wing of interesting this new house was first that it's a notice case however of course mr frank relies on sanders for the standard which he believes should be applied to the harmless error analysis which itself was a notice case in addition in new house the veterans court made a factual determination that the board had not made that actual notice had been received by mr new house and so the veterans court there did exactly what it is here and do not rely simply on the facts as found by the board look at the record proceedings before the board and the secretary as it statutorily required to do and which is permissible under this court's decision a new house i was going to bring up to login the fact that a seventy two sixty one is permitted to go outside the facts as found by the board well what standard should that ten square be applying well the supreme court and sanders set forth it's both is it view of the typical centered as applied in civil litigation and also set forth very standards that apply including the estimation of the likelihood that the result would have been different in sanders what they're saying is there should not be a mandatory rigid standard but that it should be left to the discretion of requirement upon a veterans court to find evidence overwhelmingly favors affirm and in order to find that there would that any error was harmless it simply said that that among other tests that civil courts have used in the past is guidance to the veterans co factors that it can take into account if anything the standard said when it set forth the factors that should be considered what simply the estimation of the likelihood that the result would be different that's different than an overwhelming evidence in favor of affirmative supposed to veterans part and i understand that the test should be overwhelming i think that's not the correct answer but suppose events by sort of looked at this and we think it's sort of sixty four we think it's forty percent possible we're going to reach a different result but it's sixty percent likely that they wouldn't and so we think under those circumstances there is that a correct approach i think because the statute allows veterans court to look at the facts outside the board yes that would be a sufficient basis if it determined that although in some circumstances it could but if determining based on interview of the record that it would not have reached a different interpretation then yes that is a an adequate basis for determining that whatever error there was it was a harmless shouldn't we ask that the court at least go through the factors that sanders points out are relevant to these kinds of determinations rather than simply just make a generalized statement that says we think there was harmless but that's not what the veterans court here did it didn't just simply say they point to where we see it and it's harmless and it reviewed the evidence and it in in a in a in a more you know basically no longer opinion doesn't mean that it did not perform the analysis that's required and in fact mr franks burden to prove to separate evidence that the veterans court failed to do so the veterans court decision here says  that it did in fact look at the evidence we discussed evidence of suicidal ideation and looked at the board and looked at all the errors and so i think the characterization of the decision here has just being a wrote a recitation of the harmless error standard is incorrect if your honor i would like to first point out that new house is a case that predated sanders and it must be given the effect of the supreme court's holding in sanders although you have to stand for the for the proposition that they mentioned earlier that the transport can review the record of proceedings on the fact determined by the board of standards also is guidance to the veterans court on what should be taken into account in making that prejudicial errors and prejudicial area determination and we have merely that the veterans or it carefully consider the harmless error under the standards articulated in sanders not for rigid rules that would always require a reaming in order or that certain cases would just be going through a reaming and or technical for technicality purposes and what the veterans court lacks in this respect is guidance on what it should do when it finds that the board did commit error and whether it does it whether it can go so far as to make the underlying factual and what sanders says that they should consider the likelihood of a bit of a difference what your honor i would submit that what the veterans court did did amount to factual findings because it looked at the evidence in total if we do read that into the short decision that were provided with so to the extent that i did look at the evidence  total it was performing the board's function and of the evidence i'm told to determine her motives are certainly your honor it can and it did so in vogue in and in vogue in the veterans court said that there cannot conceivably be a result in any disposition of this appeal other than a firmament and it could not possibly change the outcome here really going at thirty one instances a symptom of an increased reading this could possibly  outcome for mr frank this isn't a case where this evidence is completely irrelevant it's on point and it's relevant and it's something that could affect his out and what we ask this court to do is to provide that guidance to the veterans court in circumstances like this and to draw boundary of where the veteran court does go too far in making an underlying factual findings and for that reason we ask that this court set aside the veterans court decision in mr