minutes for a bottle of the issues before the court today or whether the veterans court has jurisdiction to decide the case on evidence not included in the record of proceedings before the secretary and board of appeals but created for the joint appendix at page eighty and goes through one seventy two this material was not just excerpts from the a procedure manuals or other material that the court to take judicial notice but also fact outside the record of proceedings specifically directed to and unfairly projet prejudicial to mr kind it was an affidavit for mice and there were two affidavits additionally there was a newly generated exam notice letter that was admitted by the secretary not to be the same letter sent in but for demonstrative purposes to show the type of letter that kind might receive if even if he had not receive information and he said he didn't have further information to report so why are we doing all this wheel spinning one procedure when he races up the last minute at the court of veterans appeals level in the previous even given an opportunity to present information sure to address that concern your honor i would remind the court mr carden is a world war two veteran he was an infantryman he had been service connected that's not the point is it well it  is the point in so far as there were several layers to the proceedings now mr kind at one point prior to the decision by the board submitted that he did not have further evidence to some that mr kind before the court of appeals for veterans claims claim that he did not get factual notice of the letter and that was the reason for the appeal that he did not receive an adequate examination part of the duty to assess the response by the court what the v a did is they took that liberty and they created a new letter they created affidavits they created material to essentially convince the court that that this would have been  the type of material that would have been received by veterans so that the presumption of regularity could apply but it was extraneous material created after the record of proceedings specifically to influence the court and i think  board's decision represents that apply and equally when the veteran raises the issue after the board's opinion as judge jury pointed out this is an instance where the veteran is creating an issue with the last minute and of course if we send it back then we get criticized for putting any time the court has exceeded its jurisdiction and i think that it would have been perfectly fair for the court of appeals for veterans claims perhaps to decide against the claimant on the presumption of regularity it would have been perfectly fair for the court of appeals for veterans claims to receive a copy of the letter that was sent to the veteran putting them on notice but it is a violation of the court's jurisdiction when it begins to consider extraneous material it was possibly possibly some little slaughter so we're going to keep it going here even though you said earlier there wasn't any more information that i had to provide that doesn't sound like justice to when asked if they have tonight does not understand what it is or when asked if they have to that does not understand what it is which i think led to some of the confusion in this case but both parties agree that a copy of the letter providing notice of documents it reviewed to reach its conclusion that the records show that notification was mailed and so i think there was clear air in the reasons and bases for in all the way back to the board and so i exam and he says he doesn't have any other issues and signs that form well that i think if you take it isn't he acknowledging that he didn't show for the exam at that point i'm i believe that form is in the believe that he didn't raise notice at that point if he was he did not know not at that point base and yet he signed this this letter acknowledging that he didn't show without saying well i that point also gone and had a favorable tonight this nexus examination which he believed was in the record which is in fact and the record doctor says something like it might be right there might be a connection right it's hardly a solid statement of there is a nexus right please the court the issue before the court today is whether the veterans court may consider certain material before the board reviewing the presumption of regularity when a legal challenge to that presumption is raised for the first time in the veterans court right is that the issue or handbook information it supplied a great deal of information dealing with quite a you know we had or that that purported i read it wasn't fraud it but it purported to be what the notice would have looked like if they actually had one but they did yes and they had knowledge they didn't have the letter was on their own product and they also see veterans court didn't rely upon the letter itself making its determination whether the presumption of regularity applies ultimately while one can criticize the creation of the letter it's not something the veterans court actually relied upon veterans court we will acknowledge of course relied upon the declarations but those declarations went to questions of general applica dealing with agency procedures simple ministerial matters that are typical in which we look at with regards the presumption of original kind of following up on the same thing that george wallace mentions this is a veteran score limited to the record a local business that the statutory language record illo generally they can't make findings of fact with regard to findings that were before the to resolve with those you have to remove in certain cases yes you would have to mean if it goes to the merits there's no question because that is committed to destruction of the secretary in the first instance of the veterans court definitely can make a finding on that issue but again this is a much more limited question that it was looking at it's more akin to any number of cases in which the veterans court would be making some initial fact findings such as when it's  looking at the first question questions of prejudicial error in that case the veterans court is engaged in a degree of fact finding but it's a it's not something where they that was committed to the discretion of the instance so that there are we would agree that there are many cases i would say the vast majority of cases where the veterans court should not be looking at evidence in the first instance and should be  and material evidence relevant to the merits of the petitioners claim in that case and that is extremely distinct to the question of whether the presumption of regularity attaches in the first instance they also talk about the the order supplement and the order supplement which is found it to seventeen to eighteen and record the the government is not ordered to produce necessarily a letter that's in the record the veterans court simply notes that there is no letter in the record if there is a letter in other words if it had been advertently admitted please present it to us or tell us why there is not a problem with the letter effectively not being in the record there is some confusion in that decision and i think part of that request is born of the fact that the veterans court described the examination as occurring in two thousand and seven when the only residents of that of record talks about the two thousand and six examination  that the government clarified in its response noting that the examination was indeed two thousand and six there is no two thousand and seven examination with regards to  why on earth didn't your client just rely on the wall to mom on presumptions rather than it bothers me in any of his administrative matter when the record is affectively reopened without going through the analysis that's necessary to reopen the record which is a very limited if the appellate level i would agree you could rely upon the law that that there isn't the presumption of regularity is what they did yes yes i and i and i understand we wouldn't be here today if they had simply said presumption of regularity but they were responding to veterans court as fully and thoroughly as possible that french court itself can determine what it looks at  doesn't look at and i think this instance of properly did look at the declarations and it did limit their use they could do it within the limits of administrative law and if we're talking about in terms of administrative law you know their words the a p a standards under the a p a standards a court can supplement a record when it's necessary for meaningful judicial review in limited certain limited circumstances and we agree that this is a limited circumstance you cannot create a new record wholesale on you know the court's decision doesn't say one way whether or not that would be an acceptable circumstance to supplement  told and distinguished judge able to sense it they specifically found the new material was the basis for the panel's determination that the board did not err in finding mr kinds have been notified of the schedule be a examination this is a joint appendix two hundred furthermore in their dissent the judges noted the court lacks jurisdiction to obtain a consider evidence not in the record of proceedings citing to thirty eight u s c seventy two fifty to  be review in the court shall be on the record of proceedings before the secretary and the board finally they also noted when fact why should we give to a dissent in this particular case great w sure they also noted when fact finding was necessary the court has i was remanded to the v a regional offices for consideration so that i think  our next case this morning