bolt who is a member of the bar and is in good standing with the highest court of georgia i know because i swore her into that last week i have knowledge of her credentials and i'm satisfied that she possesses the necessary qualifications so ashley's been my law clerk for the last year and i have to say getting to swear in your law clerks is probably right up there with getting to marry them but it's a wonderful thing and i'm happy to bring her to our bar  i have learned more about the state of alabama in the last year than i ever thought i would which is where ashley is originally from and all of the things i've learned were tremendously interesting so thank you for bringing that into our lives  i really enjoyed getting to know your husband and your son and have a wonderful family and so they think you for clerking for me and if my colleagues agree i'd like to have you sworn in to our bar i record once a state bird operation of a motor vehicle y under the influence of alcohol in violation of state law and the use m j because willful misconduct only occurs if the operation of the moderate vehicle while under the and lots of alcohol is shown to  a proximate cause of the injury disease or death and how do you define proximate cause i don't define proximate cause are honored because the secretary did not define proximate cause the secretary wrote this regulation that is the secretaries or requirement for a preclusion from the entitlement to service connection and without evidence of that which does not exist in this record didn't exist at the time that service connection was granted and did not exist at the time in which the proceedings were undertaken to sever the criteria for severance cannot be met so you're new here or not i'm not looking for any completely we can take the standard common law definition of polkas process yes i believe it can i don't think there's anything that prohibits that i think that this court in interpretating could take the plain meaning of that or the generally accepted legal meaning of proximate cause as the definition but the question in this case is and the error by the veterans court was is that the veterans court relied upon what it referred to as the more would you expect there to be i mean can you give me an example of what you're thinking of when you say that there needs to be more well just to be clear i'm not saying that i'm the regulation no your poin the blood alcohol test is not enough so in thinking about this and thinking about future cases and what would be enough i'm asking you what that ecclesia what would be enough that there needs to be a causal connection some medical evidence  some empirical evidence from the accident reconstruction but there is but there is actual evidence because he said so that he was driving a motor vehicle on yakking he said he ran into a telephone pole was that c don't believe that's correct john but the reason that that happened has not been tied to the isn't there a presumption one is that far well when he's over the the legal limit but he's way over the legal limit i mean he's up he's way over the legal limit when he when he gets to the hospital well your honor it but being way over the legal limit doesn't rise to the legal requirement that the secretary himself imposed on the definition of willful misconduct and that is that there is some causal connection with having run into the treat that relates to his being on the in full what one things i don't understand is all of this sounds like a veterans driving while intoxicated so the board as far as i can tell made to express fact findings related to causation and those are in fact fact findings and i don't get to review them on appeal so i i just don't see how all of this  exercise in me dismissing this case for a lack of jurisdiction and if this court were reviewing the board's decision your honor i believe that would be correct but this court is not reviewing the board's decision this court is reviewing the veterans court decision and the veterans court decision doesn't speak to causation it doesn't adopt that finding by the veterans court it doesn't speak to causation if the veterans court had said that there was because they didn't understand the veterans court are you suggesting a veterans court could substitute its own fact finding for causation over the boards fact finding no absolutely not there's not so the board found these facts the facts of the veterans court doesn't mention them i don't understand how there are any less present in this record they're clearly places in the record the out of berman of error by mr abel is that the veterans court relied upon a misinterpretation of this regulation by not speaking to the question of proximate cause and because as you have indicated the board made the finding sufficient to meet the requirement of three point one and three for the proximate cause of caused by his intoxication and why is it that you think the fact so what is it you think the veterans court and how is it the veterans court erred as a matter of law in a way that i can review under the circumstances i am not following oblique result in the disability or death i think that that is a higher standard than the mere causation that you're referring to in the fact finding that was made by the board and that when the fourteen fact finding talking about what caused his disability and then said as the court has affirmed that determination additional medical opinion evidence would not benefit the veteran so what am i missing on page eight to nine i understand it probably isn't spelled out quite as clearly as you would have liked to have seen but they are expressly citing the board's findings they're doing so in the context of whether a medical  examination is additionally required if the reason they're saying it's not required is because they say the board found that his disability were caused by the accident so they're saying we don't need to have a medical exam and i'm saying your honor that in the definition that is provided in three point one and three the secretary himself has placed a higher burden of showing proximate cause for the resulting disability and that under the conditions that would raise a presumption to the effect that would be considered willful misconduct if in drinking a beverage to enjoy the it's intoxicating effects of intoxication results proximately and immediately in disability or death will d be considered the result of the person's willful misconduct ok i think that hurts you not helps you let what am i missing well because if it requires credible because he wasn't station in korea in june of one thousand nine hundred and one and you cite to the veterans court decision in a support and it says that but the board decisions as far as i can tell  it's possible that the specific service records that indicate where he was stationed in june of one thousand nine hundred and eighty one did not make it into this specific appendix however the board and the veteran's court  did find that he was stationed in texas and he was in kentucky at the time of this the words only gave him more to fear call accident accident the allegation is not contained in the specific record itself but again i don't that his arguments are waive your honor we are not as we stated in our prayer as we didn't state in our brief or not specifically raising the argument that the argument is waived but i do want to know that mr argument mr carpenter's answer in response to your honor's question on that was that it wasn't way because the way the veterans court referred to it was essentially addressing that standard even though it didn't previous he states for example on the reply brief page five that the facts of record do not establish proximate cause and on page seven he states without such evidence of proximate cause and there are numerous other references in his briefs to there being not enough evidence on the record yes but mr carpenter's claim not enough evidence of the record under the correct standard and see you can't sort of reprogram over that what what do you understand the standard to be what proximate cause well your honor if we're going by the common law definition of a proximate cause and i believe this court has actually addressed this before to some extent not in the stand not in the setting  guys for purposes of application in this context what the standard should be your honor i don't believe that there is a specific definition of what proximate cause means in this particular context rather exactly your honor rather three point one and three thirty ones see both state proximate cause approximately causing but they don't state exactly what that means therefore as this court held in all this traditional notions of tort law regarding proximate cause should apply and i think one of the standards that this court cited in that case as far as what proximate cause is is extending to foreseeable risk created by negligent conduct and that directly contravenes counsel's arguments regarding what proximate cause should be constituted of in this specific scenario it seems to me that mr able is somewhat conflating proximate cause with actual cause and here the board specifically cited proximate cause as your hon attempting to do is ask this court to relay the sufficiency of the evidence and i'd just like to finish by stating that i believe that mr abels focus on three point one and is a bit of a red herring in a way because the actual finding made by the veterans court and ultimately by the of service connection was warranted the standard for that is essentially whether it and whether there was a bit and that was not in front of the board at the time or in front of the rating official at the time that the severance connection was granted and whether that would have manifestly altered the original decision and here it does not appear that mr abell is contesting either of those accordingly don't you have to in order to determine whether it would have manifestly altered decision you have to consider this proximate cause issue and to the extent that the board and the veterans court had to consider the proximate cause or causes ation they both did so and found that i think as the veterans court said that misunderstanding the what the error had to be and whether there was clear and unmistakable error or undebatable error and as a veterans court found it's not that every single while the bor has to consider the facts underlying the error that not every single fact underlying the error would have to be found to be undebatable that would be an impossible standard to reach rather it's the error itself that must be on debatable and here the veterans court found all i think if you use that definition that there's nothing foreseeable about drinking and driving into a tree if that's not the proximate cause of having run into the tree related to the fact that he happened to be over the legal limit but i did want to say it's not legally foreseeable if you get really really drunk and write a motorcycle  you may run into something tree or not while you're on it i think it's unfair to characterize a blood alcohol level that such impairment was not the sum of unknown medical condition or road condition that was the proximate cause of the july one thousand nine hundred and eighty one motor vehicle accident the court responds however what the law requires is that the v a demonstrate that the cumulative evidence of the facts upon which the initial grant of service connection was based are clearly and unmistakably erroneous citing its decision in stallworth that indicates as i said in my earlier argument that the court understood the causation argument that was the proximate cause argument that was being made by  abel and that does not address and the veterans court did not address the question of the requirements of the v a s own regulations that require that it be a mediately prior and immediate cause