veterans did or did not mail a notice to disagree the board made explicit statements throughout its opinion that the only way mailing could be proved was to show a federal postmark or actual receipt added appears that what they mean by actual receipt of some sort of a date stamped copy of the document in fact the board sets these up as the exclusive ways to prove mail now as a standard of proving mailing list doesn't even need a commonsense if i mail a document i don't have a postmark it's off on the level of the just got mail so i no longer would have a postmark to be able to display if there were a date stamped copy of the document or i don't know perhaps an affidavit by a b a a ploy saying yes we got that document we wouldn't be trying to prove mail there would be no need for it the only reason to prove if the board standard were correct you could never have any sort of a use of the common law mailbox rule because you couldn't prove malice because it's a it's a circular standard you can't prove your mail that because you don't have it there to prove you build it and that's because you milt now the finding of the board is clearly wrong it's you know it's a standard that does not work and it can't work under the common law  veterans court ratified the standard again saying yes there must be a postmark and explicitly saying there is no common mailbox rule in veterans only a postmark will post more proof of course serves a different function that's the function of showing when something was mailed when there's not a question of receipt it's question whether it was mailed in a timely fashion now if there were no mail box rule this erroneous standard would be harmless  because if if mailing didn't matter then it wouldn't matter what standard the board used to determine however this court's decision in rio's clearly said that there is a mailbox rule which is applicable in veterans not just a postmark now that involved a different statute that involves section seventy two sixty six mailing a notice of appeal to the court as well that agrees that it applies here right but of disagreement the board didn't make a finding based on all the facts the board simply said up to six is there a postmark and is there a date stamp copy of the receipt or government  government's position as you know expressed in their brief is that the board actually used the correct standard that they weighed all of the facts and made a determination that he had not proven he mailed if he doesn't prove that he m that's correct so how can they apply the real standard than having the standard before that well they couldn't apply the rio standard per se but they could apply the mailbox rule and we did argue that savages case was before the board and the court both of them said no mailbox roll veterans we argued at the time that that was incorrect the mailbox rule did apply the court disagreed with us but in light of response to that with respect to both the board and the court of appeals for veterans claims i take it is that they did not make those findings except through the filter of the postmark slasher seat will and therefore did not make the requisite findings that would be necessary to rule in the government's favor under the right standard that's exactly right you're out and you need to go back and have those findings re made under the proper typically we would send the brains to the to the court whose judgment we were reviewing your are you suggesting that we should direct that court to send it back to the board or leave that court free to dispose of the cases they see fit well technically i mean obviously you can do it any way you would like the court of appeals for veterans claim is not supposed to be making factual findings are either in this case the court case law hensley and so forth you but there is no indication in the board's decision that they did in fact weigh all the facts again and again and again and particularly in the board's opinion from about a thirteen through a fifteen they say numerous times that the only way to prove mailing is by a federal postmark or proof of actual receipt the standard wasn't met as it probably could not be met in the sort of situation so the board said it wasn't mailed and  in light of the government's harmless error argument i also believe the decisions of this court and to me go and moody or lost or to have as well both situations in which the incorrect legal standard was used by the board and or the veterans court both of those cases this court held that to determine it was harmless error would require examining all of the facts to see if it would be if the board's decision would have been the same under a correct use and that that couldn't be so in this case again this should go back this is a finding of fact secretary is actually asking this court to look at all the facts and say well even under the correct standard this would be the result so it's good morning hours may it please the court court should affirm the judgment of veterans court because any minute the men of the law concerning the viability of a common law mailbox for a once harmless error the board did make specific findings particularly on page fourteen of join appendix could not be clearer the board states since he has not proven that he put the letter into the post office or delivered them to the post man in one thousand nine hundred six it cannot be presumed that the july ninth forty six letter reached the v a here's my problem with that statement and i think most would show pointed out in a reply brief exactly what i'm going to say something when you know what i mean to say in context the board leads off that statement by saying without a federal post mark or proof of actual receipt there is no proof that the letter and attachments were ever put into the post office i read that to say that's the only door that you can use to get to the result that he needs to get to and therefore when they later say he has not proven it's through it's saying that he didn't get through that door if that's true then don't they need to take a new look without last question is doesn't that statement of the incorrect statement of law as the basis for proof of the of mail in effect contaminating the later statement that he hasn't proved what he needs to  it's clearly within the context of shots and after the couple of sentences here where the board says that the better did not prove that the presumption cannot work goes on to say moreover shot is a completely different case for all these other reasons so there's reasons that this court can find that the board was looking at this through through the filter of a supreme court decision again i think we completely agree that that one sentence is in course to ultimately have the board say whether that's what they found as opposed to our guessing because looking at the court of appeals for veterans claims decision i don't see any indication there that the court understood the board to have made a finding that you say the board may there they seem to focus very much on the postmarks leisure seat rule so we don't even have the court of appeals were veterans queens saying aha we've concluded that the board made this property line doing so why shouldn't we say in this case back to the court for purposes of remanding to the board to make a determination if they decide that they've already made that signing they won't have to waste a lot of time on it if they decide that they really weren't making then makes potentially a pretty big difference to this letter well  reason that this court should not simply remain on the scene is because this court has an obligation to determine whether that error is it is a harmless error or tween contend that it is we're not confident that it is harmless because we're not sure what the board leave greed with those i don't see why that's so because i think your whole argument has been that the board was seeing something quite apart from the legal test that it was then applying it was applying the  made a sort of additional climbing with respect to whether anything was ever sent therefore it's not necessary for the court of appeals to have commented on that additional fine if it was made so it would seem to me it's not implicit in anything that the the court said that there was adoption of such a finding and it's certainly not necessary to their judgment to have found it and i don't see anything in the opinion that adopted the findings so i wonder about the accuracy  just a couple of points i'd like to make when counsel for the secretary said that the statements of the board on page fourteen were in context of discussing shots it should be noted that they start out by saying the veterans representative erroneous lee cited an ancient case in an attempt to show that there was a mailbox rule and i think that if tends to vitiate any idea that the court was saying yes there's a mailbox rule and now we're going to go through and look at all the factors to see if in fact there was payment i mean excuse me if there was in fact mail and the other thing i would simply like to point out is when you go through the board's opinion and they make approximately didn't let's balance those out any finding that they actually use the correct standard and balanced all the facts would require quite a bit of mind reading and quite a bit  of reading things into this board decision is in here so therefore we suggest that the better course of action considering the fact that the board repeatedly stated the standard they were using and if i'm incorrect which is to send