requires from me and a diagnosis of a defect made at the time of the examination for entrance into service and recorded in the medical examination report this definition is question and then just correct my various assumptions i took it from your reef that you had of your legal interpretation the legal standard and as you know that's pretty much all we get to talk about it's legal standards and has two parts one that what has to be recorded is a diagnosis and second that what has to be recorded is a then current condition tell me why the following is not true as to the first there has to be a diagnosis you didn't make that argument to the poor to the veterans court and as to the currency not those current as of the time of entry into service the veterans court not only didn't disagree with that but indicated that it agreed that the past is not the same as the present so if you put those two things together what preserved legal to be rico and using the word recorded to avoid the regulatory what has to be recorded in order to be a qualifying notation is some condition that's current as of the time of entry into service but my understanding is the veterans court agreed with that and so what's left is a possible interpretation of the particulars of this case whether it be the note that the the observations of about a total absence of any evidence of the defect at the time of examination at the time of the examination of course supported by the regulation which rules out history to or rises from injury it was the absence of any finding my that we call it a diagnosis or a detection or just a finding it was the absence of that finding of a defect that you are you pressing an argument here for a difference between the second germany disorder on one hand and diagnosis on the other no you honor i think think they go hand in hand and i don't think it's particularly important whether we use the term diagnosis or the government prefers its brief detection or whether we would just injury i'm really struggling with this because it doesn't seem as if you have an interpretation a legal issue for us instead you are asking us to look at the record and look at this court's findings below and see your view is that we should look at the forty two hold over and the comments are made on the consultation chief and i understand that to be a total lack of evidence as opposed to the court looking at that evidence and picking sufficient the question is whether any of the evidence that the court cited two relies upon doesn't meet the legal standard in any way not not is it sufficient to meet the legal standard evidence and conclude whether a legal standard has been met if we don't know what the legal standard that's the question here what is what is the legal standard once we know the legal standard then it would be a question made in his opening brief that there is a legal error that was made below with respect to the term noted as requiring a day diagnosis was not raised below now that would constitute a waiver as we pointed out in our brie circuit noted that even though mr walter of was challenging essentially saying that there's a total absence of evidence would be legally insufficient to meet the requirement for the to rebut the presumption  q context that defect is particularly problematic with respect to the merits if the court were to reach the merits it should affirm that again a q claim being a rare and specific error  reflected in twenty points which you know three counsel refer to the standard here as being one of the legal standard for noted is some kind of recording we sent was one of the articulation made on this record it is clear that that standard would have been met and really getting to that you claim what that what was before the board and what was before the veterans work was the question of whether or not reasonable minds  a current as a venture into service condition or are we now talking about whether what was recorded constitutes a diagnosis well your honor i would agree with your characterization of those those are two prongs you transitioned into this piece of your argument i say let's now suppose that the question of whether a diagnosis is required is properly in front of you because they argued it and then what and then you want to say you have a legal assertion and a diagnosis is not required that's what i thought you were going to say but instead we started talking about how there really was one here or something so i ok you can refuse sure so your honor if  the question is whether or not there is a if there is a requirement of a diagnosis in the term noted that on the plane face of the statute and the regulation is not consistent with the obviously congress did not use the term  did not use it to be a didn't use in its regulation clearly what congress did say and using the term noted is there is some need to memorialize and on this record what the what the world looked at and what the veterans  for something in the person's body or mind or what and what was that that was written down about something in mr davis body or mind that was in his body or mind at th and about his body or mind then and there yes your honor but but what what the regulation and what what the evidence shows is what occurred here was that the medical examiner when first exam and mr get indicated this was a document that was a dated october twenty ninth one hundred sixty three it was incorporated into the medical examination report prior to entry and it was part of the record that the board looked at well i would agree with your honor doesn't say specifically what his condition was on that date but again the question before the board was whether or not there was a clear and unmistakable error i would point to the court's attention to page twenty one the appendix which is the heart of the board's decision and which it examined whether or not there was a queue on this record and what it found is what is there was quote more than a pre service existence recorded at the time minds can differ if reason why it's can differ by definition it's not you and so under that heightened standard once we get into the evidence we're looking at examination of which were obviously were beyond the court's jurisdiction but looking at the factual records found below service examination and determine whether or not that requirement was met the verdant case the veterans court's decision and burden is helpful on this point we cited in our brief and that case the the the person who was being examined had some and onions that were not symptomatic at the time of examination and yet the veterans court found that there was still based on other evidence that was contemporaneous sufficient to constitute a notation and the argument the mr get as making the construction that he's advocating in terms of adopting a diagnosis requirement would really impose a severe burden on the exam and examiners who were carrying out these examinations during the pre service examination process and it is caught inconsistent with the language in the statute but also just the purpose of the presumption of soundness which the court explained and wagner in terms of making sure that the v a does not without any basis deny service connection on on the basis of some condition being the pre service condition i do also want to point out the question on ambiguity and our position would be that the statutes is clear it's not me and it's in big us as to whether or not a diagnosis required is required and so we would point out it doesn't say diagnosis even if the term noted were to be considered ambiguous there would be a basis to defer to the ter was written he also states he was suffering from hypertension and that's not good and the exam either so it's not at my current report it's not recorded in the examination report and in any event it's clearly excluded because even if they answer even if it's a recent history it is nevertheless history which the secretary's on the regulation very clearly excludes but why isn't that reasonable at least stood for the just focusing on the anxiety neurosis reasonable for the board to have concluded this is sufficiently conditioned as it's late november because this is not the kind of condition that we would expect in the absence of evidence to go away i think i go away in that in that in any reasonable time from when dr o you know i don't think there is a medical basis to conclude that a nervous disorder is trying to will not result in a short amount of time in fact i would note that nervous disorders are not considered by the eye to be chronic  the secretary of state's office breaks the board apply the law to the facts and later that applied legal standards those legal standards are what are are at issue here in view of the fact that there is no evidence to support the legal standard if