in service military accidents one involving the better being ejected from the truck at twenty to thirty miles per hour and the other involving a car accident the last ration is for the skull they require x rays of the skull well did anyone say that hispani example and also since lifestyle choices did it go into a discussion about those lifestyle tice's and how they affected the results here the examiner did not he also did not go into any medical reasons why the net condition was not related to service other than  the conclusion which the board then found highly probative the fact that these more likely etiologies for this veteran the board personalized it to this veteran so regardless of what the examiner did in his opinion what the or did was consistently throughout the case attributed his neck injury to the military and since no he did have treatment from ninety four to ninety five and then into the two thousands for some incidents that occurred post service but he's always attributed to military service the two accidents that occurred in june or july of one nine hundred sixty five accident where he was a jacket from a truck and you can see that a joint appendix one of three and then also he's attributed to the february one nine hundred sixty six accident which occurred behind the hospital at fort hood where he was then admitted to the hospital had to have a skull x rayed and lacerations to his skull sutured suggesting that there was a possibility of damage to the neck but at the very least there was an incident in service that he has always consistently claimed  veterans court did not address the argument that we presented and that was necessary because they decided the case on all other points of error that we raised because it was presented because it was necessary we believe that the veterans court should have addressed it and they did not an how would they have had to address it what they have had to go on through i mean this is just drain a point that this statement by the examiner not only with numerous factors but says justice o'connor in the outer edge case and she quoting justice stevens in an earlier case talked about how because ethnicity is so seldom a relevant base for government action and because it is so harmful to the body politic that any reference to an ethnicity classification needs to be clearly identified and unquestionably legitimate so in that context the mere reference of ethnicity for hispanic better and who in the record is known to have not been a  united states citizen during his service certainly all those factors call into the question of whether this examiner was making a passing reference with the other listed etiologies that question is resolved when the board be that there is some problem that happens well we would think that age i would think that age is different from ethnicity in the sense that age is not a suspect classification require strict scrutiny whereas ethnicity and ra so certainly the burdens that the court would have had to look at you know it doesn't change it gender is risky gender gender is an intermediate scrutiny upon correct that so i think that there would be a different level of scrutiny that the court would apply but again our argument at the court was whether there more of a reference to background than that which would come from the long we're saying first that the examiner should have if they're going to say the examiner is going to say that it ethnicity was and it's a logical fact or rather it's one of many at least provided some reasoning to connect the ethnic background of the better and that it relied on this is not a case with time and again we see county men exams that mention the ethnicity of the veteran but i have not yet seen one in ten years of doing this work veterans ethnicity has been with the inclusion in the list itself is not improper and i think we're looking what we're looking at here is the difference between a passing reference and an ethnic classification what what what concerns me is that in your brief you haven't you haven't shown how the city as a reference to etiology for this better so any passing reference they could have been there in the exam as opinion was negated by the board judge's decision saying that the more common e t i are more likely to algae was his word so let's let's go down the path of discrimination an intentional director circumstantial evidence of discrimination in this case we have that direct evidence because the ethnic classification was specifically included in the examiner's opinion and in the board judg or the board judge's decision and what would what is that in our opening brief before the veterans court we argued that the v a examiner reference deafness city and that we were arguing that there was no reasons or bases for that reliance there before this court certainly i would have to become candid your honour's that my argument at the veterans court was not the most forceful equal protection argument that i could have made that court out of something on the table reference i will concede that my argument of the bench warrant was not as forceful an equal protection argument as i could have made but it was a very calculated decision based on rule twenty eight requirement that we have a statement of the issue included ethnicity and that we made the basic argument with citations for the record the law that we were relying on my client was concerned on one hand with that aren't limited by the fact that you really have factions here that it was not limited by that it was limited by concerns with my client but my client was concerned that he was going to have to go back before this board judge you know what he meant or in his other pending claims he did not want to make a forceful equal protection argument such that he would be seen as impugning a board judge's integrity by the same time he felt that ethnicity was the reason that he was denied benefits because he was hispanic and so we made a calculated disk decision to not only present the argument but also to tread lightly on its record and how can you make that statement that that was the basis for his denying me other than that one sentence which is just in the context of the sentence starts off by saying he hasn't proven as there always reasons to disprove them and then they just have in addition to that indeed more likely reasons are the others that really doesn't have to do with the basis upon which they tonight and in fact that sort of proof and by the whole else of the full discussion of the court of veterans claims and their calling out what they're affirming interims led them to conclude that your client was not title to disability claim and if you take that examiners opinion off the table that has the ethnic classification what you're left with is at the very least i propose and probably very likely preponderance of the evidence showing that he's either way that you were to to go you're out if you were just to take that sentence off the table what you're left with is two factors in his opinion finding that there's no connection to service and it's a failure to explain forty years of treatment which the veteran didn't explain and nobody's ever challenge and then also no evidence in the medical records of the severity of the accident which aren't really necessarily relevant when you have a veteran's unchallenged that determination or a discussion of what happened in that accident so when you're when you're left with those two things part of our concern your honor is that we feel that we were entitled to at least the discussion from the court we presented this issue that there's no reasoning for the ethnic classification we can't determine how much they did or did not play a role is that in the calculus that it's less likely or only in the calculus that it's more ninety two course jurisdiction so i believe this court does have the authority to review him at the very least for finding that there's no reason in provided for the ethnic classification in the board decision  and they go on to specify the details of that no reference to the ethnicity subject no reference to anything about that type of sentence this is all based on that yes so i mean they're saying we're not we don't think this was because of this that we're just making this determination as did the board for all of these independent facts with which we agree and we would still be entitled your honor to review under limbo even if they were  denying it substance you are not saying anything about the constitutional claim which don't entitle to review the facts that are in that page that you cited a majority of them come from the november two thousand and eight exam and then the ones that don't come from it al because it suggests that without the classification in that exam that the facts might have been weighed differently mr diaz has a substantial right to adequate reasons and bases in a board decision and if he doesn't have that adequate reasons and bases how can he argue at the veterans court whether or not would agree the ethnic classification that he believes existed in that examiners opinion that he believed existed in that board decision he has no ability to argue how those were weighed out before the veterans court so that denial of the substantial right is prejudicial to one good morning your honour's please the court we ask this court to affirm the decision below because mr diaz has not established an equal protection violation mr diaz has argued for his counsel that his claim for veteran benefits was denied because he is hispanic in violation of his equal protection rights to establish an equal protection violation and mr diaz musher that the government intentionally discriminated against him on the basis of race and gender or national decision your honor i would depend on the facts of the case in this case there is no evidence that he did consider his ethnicity the board and the veterans court do not even mention that he was  hispanic city that would be a closer call your honor however it seems as if everything else was the same that still would not establish an equal protection violation in this  so let's assume it's a hispanic ethnicity because they're talking in the sentence about his claim conditions so if it's his ethnicity talking about that we were talking about hispanic so so what if it hits and hispanic on the facts of this case there still would be no equal protection violation i would like to move back just one moment to address one thing that you said your honor we do not know that weight calculation many of the other ideologies listed there is no evidence as to whether or not they apply to him and in fact in his brief to the veterans court m concluded that there was no evidence of service connection the v a examiner was tasked with determining whether it was at least as likely as not that mr diaz's disability was related to his in service connection once the v a examiner makes that determination there is no requirement to determine the actual cause of the current disability is that why is that sentence there your honor that sentence probably does not need to be there having already determined that there is no i can't say why it is in the medical report but there is no evidence that the reference to ethnicity was intended to relate to his hispanic ethnicity from the evidence we do not know whether hispanic at the scene makes a person more or less significance that these allergies for these claim conditions could be a result of all these things so what if he came and what i think this is just three things ethnicity age you know big city and he could show well  fell off a group of six years ago and what if that happens not wouldn't that be a problem in terms of the analysis and that would be a problem in terms of the analysis however the claimant below still has the establishing a service connection so that in that case that might be harmless error if the if they were incorrect about the actual cause of the disability but that is a question that they don't have to reach and there as compared with trace it back to the military service for thirty years earlier you know here we have this calculation ten aspects of the really ology describing this points to address there the first is that the veterans court and the board's wain of evidence is not within the jurisdiction of this court which is why we haven't i haven't addressed it much but there is significant evidence in support of their determination the amongst other things there was no contemporaneous medical records showing in an election dish and in service at separation the clinical evaluation was normal there were no complaints of neck problems and as you pointed out it wasn't and tell them that in one thousand nine hundred four almost three decades later after mr he has left service that he first sought medical treatment for a neck problem looking at all of that evidence the board and the veterans court to concluded that there was no probative evidence tying his current neck condition to his in service accidents and that there was actually no evidence that he had any neck condition before wrong it could be a matter of balance if mr diaz was able to show so evidence of discriminatory intent in this case there is no evidence but even if there was the harmless is there is the court and the board found that there was no probative evidence of a service connection so in this case all of the evidence is on the side of no service connection therefore there there was able to show discriminatory intent he may prevail in this court but for his benefits claimed he was would still have the burden of establishing a stablish in a service connection that is his burden below and as the board in the court found there was no probative evidence supporting that claim there's no explanation of how the ethnicity played a role there is limited if any medical connection of the naches there's no if you look at dr phares opinion where he lines out the medical connection between the incident and the disability you see a very thorough medical opinion that does not exist in this physician's assistants opinion what exists there is zero he didn't say anything for forty years because he was raising children trying to earn a living with a sixth grade education but it doesn't even address that fact it doesn't talk about why in the city is a factor if it came in if this examiner had come in and said ethnicity is a factor and here is ten studies or one study showing that hispanic origin is a more likely etiology for a neck condition or any other condition i don't know that we'd be here today but it's not explained because it's not explained and because the other factors on that list are either completely unexplained don't make sense or aren't true it suggests that they're masking the true motives now we don't have to actually show there's a subjective motive to discriminate if we will have to show that that's an extremely high burden to show that i don't think has ever been placed on somebody in an equal protection claim but we do have to show is that the the lack of any explanation of why the ethnic classification played a role suggest that it played a bigger role than the examiner wanted to put in there  that goes through this again this is going to it's no you're on i'm not saying that what i'm saying is that when we show that there is an ethnic classification unexplained on its face that we've had a prime a face a case of discrimination in a examiners opinion and then we also discussed that equal protection and explained our argument saying that if an examiner can deny benefits or deny an excess based on ethnicity then there is no equal protection we made that argument there is no requirement that we pl d the secretary's burden or if this was an employment case if we plan to i'm a face a case of discrimination there's no requirement that we would need to prove or plead a legitimate nondiscriminatory recently it was intentional discrimination here the most forceful argument but we made enough under twenty a day which is it was rather than one last one and you know certainly i think we've made a much more forceful argument here for the equal protection violation and if the court finds that we it or didn't present it at the veterans court then certainly that issue is squarely before this court here and we've argued at this court that there is no explanation for the reason for classification the board judge we've argued personalized it to this veter and then further we've argued that when you look at all the factors and hold it there's nothing that explains that there's no we have nothing to go on to actually explain how had to spank ethnicity was or was not a more likely  and so we have to go with the plain words as they're written on the page we did not again as i mentioned we have two we argue that here at this court and i don't think that it's a harmless error if the court is inclined to find that there was a reliance on ethnicity we argue that it's not harmful we would argue the court should consider most asian christian and how they correlated the burden of proof in the underlying claim to the harmless error and that the the abundance of caution i don't believe that harmless error can apply to an equal protection a comply to due process because that's a more fluid concept equal protection particularly in the context of ethnicity and race require strict scrutiny and saying that there is harmless erro equal protection violation unless there was as there was in christian clear evidence that a group of male i'm sorry of white officers would not have been retained in military service even but for the minority preference there was convincing evidence in that case and in that case the court found it but in any other case where you're looking at here you're not looking at compelling or convincing evidence you're not even looking at substantial evidence that the classification didn't play a role and so because of that if the