i'm recovering from a cold i might have the voice in full working order scuse me may please a court and a carpenter appearing on behalf of nicholas or yellow mr or yellow appeals a decision from the veterans court we believe misinterpreted the presumption of soundness under the provisions of thirty eight u s c section eleven eleven formally section three eleven this case goes to the question of the n b a s evidentiary burden necessary to re the presumption of soundness which the lower court found could be met by mere competent evidence the veterans court relied upon an interpretation of the statute which allowed the da to  its evidentiary burden to rebut the presumption by only competent evidence competent evidence is not the evidentiary burden set out by the statute so you're not reading the aggravation point to where the aggravation point is in the second prong of the presumption of sounds as though the we are i would call it a presumption of aggravation but the presumption of aggravation issue wasn't raised before the board correct know your own do not believe it was but it's our position that the presumption of aggravation under this court's decision and wagner folds into the presumption of soundness because the facts in this case are undisputed that at the time of mr oriel those entrance to service there was no preexisting condition regarding collide as noted at the time of his entrance to service therefore under the provisions of the statute and this court's interpretation of that statute and wagner mr parlow would have been entitled to the presumption of soundness so that even if there was clear and unmistakable evidence that the condition exists it prior to service then the second prong must also be rebutted by clear and unmistakable evidence that the aggravation which was noted in service was not aggravated by is period of service and the  case law is clear that unless what you seem to be saying is that they've got to use the right magic words you know fifty years ago and they resolve these no your honor because this is a review of what the board did and what the board did and what the veterans court relied upon was the board's determination that the  board determined that there was no service aggravation because it was unclear or not that his condition had worsened during service that's the way that the board made their determination that's not the legal standard the veterans court relied upon that legal standard to affirm the board the board not the originals to say to raise the presumption of aggravation it's not surprising that they didn't address it directly well i believe that they had an obligation to address it because the a political provision of law was the presumption of soundness inherent in the presumption of soundness in its second prong is the presumption of aggravation you only go to the presumption of aggravation under eleven fifty three or formally three fifty three when the condition was noted entrance it's an undisputed fact in this record that and there was no collide as noted prior to coming into service therefore the  when it reviewed the v a s earlier decisions was under an obligation to apply that presumption because that presumption was triggered as a matter of law once there was no noting at entrance once there was no noting at entrance then what they had to examine was his entitle meant to the presumption sounds and you cannot say the as a matter of law as this as the veterans court said that the board's  determination that there was no q in the sixty one and sixty eight ratings decision was not arbitrary capricious and otherwise in accordance with law because it was not in accordance with law the law clearly required that o be afforded the presumption of soundness and he was not afforded the presumption of soundness either in the original decisions in sixty one and sixty eight but more importantly in what the background court was reviewing when the board reviewed the allegations of clear and  mistakable error that the underlying decision had been made in accordance with law it had not been made in accordance with law the correct law was not a plot it is factually indisputable that there was no  at his time of entrance it is equal equally factually undisputed that the medical board found that i was worsening after fourteen months of active duty service the but that goes to aggravation that goes to the aggravation and aggravation for us but it is your honor because the aggravation is part and parcel of the presumption of soundness this court's decision in wagner teaches that there are two aggravation of an injury that's what jordan said about wagner were we wrong in jordan or we were horribly wrong and wagner well i believe you're taking that the i don't believe that the quote from jordan in jordan or are we you are wrong in jordan to the extent that you can ignore the second prong of the presumption of soundness which is as wagner explains essential if we need the aggravation do we need then to go up on offer in order to reach the conclusion you wish to reach i don't believe you do your honor but if this panel obviously feels that this needs to be referred to a panel because of that conflict and certainly that would be necessary it's an important distinction when those are the court proceedings there's a conflict i perceive that you give i i don't believe jordan has any application in this case because this is a question of the interpretation relied upon by the veterans court and with the veterans court said was that it was permissible for the board to have relied upon competent evidence in finding that the decisions were made in accordance with law competent evidence is not the legal standard under the presumption of soundness and the presumption of soundness clearly triggered unmistakable evidence that the second prong that there was no aggravation and it's important to understand that i'm confused about the exchange that you just had with the  is that the patrick case makes clear that the law was always the law as interpreted and whack and so when we go back and look at or when the board in this case was supposed to go back and look at what happened in one nine hundred sixty one in one nine hundred sixty eight then regardless of what the regulations said the presumption of soundness require a hearo or whoever was addressing the issue at the time didn't understand what the statue mandan didn't articulate the standard that became clear fifty years later  respectfully all right i disagree the fact is that the whole point of the statutory provision to revise prior d a decisions is precisely that is to go back and make the correction where it is beyond our jurisdiction but here looking at the why is it that it's clear that if they'd applied the wideness standard fifty years ago that they would have reached a different result how can that be clear because of the nature of the disease in this case this is a chronic condition and there was no difference between that chronic condition which was aggravated in service and the chronic condition that he obviously had post service when he made his applications for benefits in one thousand sixty one and one hundred sixty eight it's simply not factually disputable that he didn't continue to have a disability disability from colitis so you're really asking us to reweigh evidence here absolutely not your honor i'm asking this court to determine whether as a matter of law when the veterans court relied upon competent evidence and evidence that they characterized as did the board as being in dispute can that meet the legal t that the the the doctor the present to the silos in their decisions no your honor i'm the challenge is is that the board misstated the legal standard and the veterans court adopted that legal standard the board said that this was merely a disagreement with how the evidence was wait and then they went on to say that there was competent evidence to support the correctness of these decisions in accordance with law that is a misstatement because in accordance with law mr for e l o was entitled to the benefit of the presumption of sound and the state legal standard there is clear as a jurisdiction over that claim with respect to mr pouria was assertion that the v a somehow made misinterpretations of law that this court would have jurisdiction over the court did not make any of i entered into service which is the type of evidence that can rebut the presumption of sound condition the court looked at that statement long with the other evidence in the record and said that there was no error in the regional office decision finding that the presumption had in fact been rebut it and the veterans court was applying that clear and unmistakable error standard so for it to say that something with perhaps unclear or that it's not a statement that the law was changed in that you could merely happen clear evidence or even competent evidence to rebut the standard that's in court clearly stated the correct statutory standards that page three of the appendix footnote one as of the time of the one nine hundred sixty one decision if they that sharon they veterans pre service examination did not reveal any injury or disease then the veteran would be presumed to have been unsound condition and left as noted in footnote one evidence or medical judgment existed showing that some sort of injury or disease preexisted service here the boarding veterans court explains that mr pore yellow reported that his doctor prior to service had diagnosed him with collided and based upon that evidence in addition to other evidence in the record veterans court could not say that it was clearly and unmistakeably it's very specific and rare kind of error to you that mr pore e l o alleged similarly with respect to his allegation that  misinterpreted the presumption of aggravation even had the raise that properly the court did not hold it under clear evidence can rebut the presumption rather it simply held that under the pre wagner statutory schemes that if there had been no increase in the severity of his disease then that was sufficient to rebut the presumption of aggravation contrary to mr preludes statement this morning the army medical board did not say that there was a lack of aggravation to the contrary i'm sorry they did not give there was aggravation to the contrary they found no aggravation and that's explained at page four of the veterans court's decision and as both the board and veterans court noted the regional office even found that his condition improved somewhat during his service and that there was no permanent increase in his disability so we mention some of the merits here of course not because those things fall within the  presumption of sound this presumption of aggravation are being challenged i don't know your honor how many challenges may have been filed because that trends are allowed to allege h regional office decisions at any time and multiple on multiple occasions and there are certainly could be but you have been stipulated that i just don't know one way or the other how many similar claims might be pending reviewing what the veterans court did and i direct the court's attention to papers four and five of the joint appendix at the bottom of page four continuing to the top of page five the veterans court said the board determined that there was no in service aggravation and because it is unclear whether or not the condition worsened during service the board's determination that there was no two in the sixty one sixty eight decisions was not arbitrary and capricious it's the last sentence says thus the board will affirm the board's decision that there was no q in the board's treatment of the presumption of aggravation that was the legal determination relied upon by the court below the court below used the wrong legal standard when it said that the board's treatment of the presumption of aggravation as it relates to the correct analysis of aggravation under the second prong of the presumption of soundness additionally i direct the court's attention to joint appendix thirty nine which is the medical board report from january one thousand nine hundred sixty nine excuse me sixty one that indicated in the its narrative quote during the ensuing fourteen months of service the patient had no difficulty whatsoever with his bowels however in the early and earliest september sixth the patient was placed under emotional strain and noted the onset of diarrhea diarrhea which became progressively worse over a four week course that is evidence of worsening of his collide his condition during service the fact is that the that turns court affirmed on the basis of an