are two issues in this case the first deals with this court's rule of law created concerning deem denied or implicitly denied claims the position of the  does is to say that if there is a question of there being a pending claim then that rule the implicit denial of or deemed denied rule comes into play if it is found that there was an intervening decision that disposed of that claim that it would be considered by rule to have been denied if denied it's a final decision and it's subject to revision there is no connection after that in the consideration of whether or not there was or was not a clear and unmistakable error in that final decision to the contrary this court's decision in roberson controls the disposition when there is a issue that was not fully developed to its optimum before the claim was decided on its merits and as a result of that this court said in roberson that that would be a clear and that is not a pending claim the decision that was made was a final decision and that decision is subject to revision based upon the rule established in hot the rule established in h is that the v a has a duty to fully and sympathetically develop a claim to its optimum before deciding it on the merits of the claim in this case is a claim for increased compensation the v a granted scheduler increased to seventy four a portion and from august two thousand and two forward a one hundred percent schedular ratings for the some thirteen months prior to august of two thousand and two the remaining issue was entitled into extra scheduling in this case the board and the veterans court acknowledge that an implied claim for an extra schedule or total rating or t d i you was raised by the evidence that was not adjudicated when it was not the the existence of entitle them to an extra schedule or total rating under four point one six a which is required when you meet the scheduler requirements in this case of seventy percent for a service connected disability trigger roberson it was not in the due cation it was a clear and unmistakable error because roberson says if you don't decide the issue this is the board cannot make a legal determination that there were two issues that needed to be decided in time of the scheduler rating which they decided to be increased to seventy percent the next issue was whether there was entitle meant based upon that increase to an extra schedule or rating and the under the regulation that he was entitled to extra schedule or consideration and make a specific determination that he was able or unable to follow substantial gainful occupation as a result of a service connected disability and they did not do that there is no reference in that decision in two thousand and two that discusses four point one six discusses extra scheduler or even acknowledges the fact that as a result of the increased scheduler rating the if i could shift to the question of interpretation of four point one six which we also allege as error in this case we believe that the veterans court by affirming the board's decision relied upon the board's misinterpretation of four point one six specifically that the because the veteran in the words of the board was in fact working that the mere fact of working was a excluded consideration of his inability to secure or follow gainful occupation as a result of a service connected disability that's a direct odds with the plain language of the regulation four point one six a provides that a veteran may work and may in fact have what is called marginal employment under the regulations marginal employment is defined as income that does not exceed the that's the standard in rap what that's part of the standard in the re but the reg defines the ability to work as being included in the inability to secure or follow substantial gainful occupation the disconnect here is that in the v a s own regulation it says that a veteran may in fact be able to work and have an income so long as that income from that work documents the analysis required under four point one six in this case in the thirteen month window from july two thousand and one to august of two thousand and two is to determine whether or not he had more than marginal income so i don't see how your your argument very circular what i know what we did is circular your honor because in light of the duty to assist because it is predicated upon the standard in roberson the standard roberson is based addressed that in roberson and it said that when the v a fails to decide an issue that that issue the failure to decide it is a clear and unmistak error and that is you don't have to get into the duty to assist the  can be subject to the implicit denial rule in its decisions in additional and adams and there's really no distinction with the t d i you claim in fact in the mortician and the shuttle is referenced it's two thousand and five decision andrews and robertson where it stated that it was in fact following the same principle that once a decision is rendered if a claim a believes its decision has a decision has not been expressly made on one cla would notice that here while the board use the language of implicit denial the panel has correctly noted that the two thousand and two r o decision does address to you because wall mr romero was granted in an increase of correct that that is the standard by which you judge kiya you however i don't believe that the board or that aren't court thought that it was creating a rule of law under which i gave you reading would be per was in fact working but that's not right is that it is right in the context of two which is the context in which this case the road of course into collateral attack and there are very specific requirements for showing to you first of all it has to be based on the evidence in the record and you have to show that there is an error that outcome determinative here mr romero it saying that he believes he should've been been awarded to be a use for the period for a certain period however there was evidence in the record that he was employed during that period and so and that in terms of q he cannot establish that he was under battle error that the  obsessed there was some evidence that she worked three hours a day in the minimum wage but again that then it can't be clear and unmistakable error i think that that doesn't even come close to meeting the substantial when standards it would depend on the evidence of the record and here there as and evidence that mr romero was below the poverty threshold in the right for that with the for the r o and once in the word of the problem for them having it they didn't say that the only thing absolutely because the question is whether the r o underbelly beta billy error on that record and determining that mr romero head had established a rating of seventy percent which again a seventy percent rating recognizes and it's intended to under thirty eight u s c one eleven fifty five at that there is that there are ways in which the disability is affecting the occupational earnings decision showing that seventy percent rating period for one portion of the time and one hundred percent going forward in august of two thousand and two his options then were to file a direct appeal or if you failed to do that as he did to raise a  challenge but once he failed to direct appeal where he could have made arguments about the weight of the evidence or or an argument about the marginal employment having failed to file an address to kill however he is in the very narrow context of chu which recognizes that it is an exception to the important rule of anality and therefore has very stringent requirements and must be on the evidence in the record and for t r u which is a recognition that an he can establish that there's not an express statement relating to t p a you in a decision that the veteran would be entitled to be a you regardless of whatever evidence was in the record and again here of you know as we need to correct the record here notwithstanding what the government just said the two thousand and two decision did not address p d i year what the two thousand and two decision did one of the breast scheduler rating of one hundred percent it was operating under a completely different set of regulations scheduler ratings for psychiatric disabilities are controlled by thirty eight c f r four point one three of extra scheduler ratings which is t are controlled by four point one six a when you grant a scheduler rating as they did in this case in two thousand and two they were using the v a s schedule of ratings for disability in this case a psychiatric disability and they assigned a one hundred percent disability rating going forward from august of two thousand and two the government is absolutely incorrect when it states to this court the t d i hugh was decided in two thousand and two it was not it was never mentioned review the record there is no reference to four point one six say an inability to work or t d i you in the two thousand and two decision  industrial impairment that's the schedule requirements to assign a one hundred percent schedular rating that cannot be confused with the extra scheduler total rating which provides for an inability to work specifically without regards to social considerations due to the service connected disability which is available by separate regulation under four point one six it those are completely different your honor and for the government to suggest otherwise is simply incorrect and disingenuous before this court the other consideration is that the government comes before this court and offers a post talk rationalization for what the board might have done relative to a q two analysis there is no determination at page fifty nine that the conclusion about in fact working had to do with the queue analysis with the analysis of outcome determinative or a manifestly different outcome that is simply not what took place all that took place was is they cited the regulation and then they said he didn't demonstrate it because he was in fact working as judge proceed directly confronted the government with that is not the legal standard you can in fact work and be entitled to an extra schedule relating under four point one six thank you very much