let me clarify something ok in describing the contest in motion before the court of federal claims mr hat maker refers to it interchangeably as a motion to complete the administrative record in a motion to supplement the administrative record is it fair to say both of our work can crank were the same thing and correctly construed by the court as being the same thing as practical fact i think there is no difference in this in this instance ron ok so that's the sole issue really whether the interest revolves around whether the interest rate record should have been supplemented yes from you know we believe it does because the p t b are in rendering its decision made two points he said the severity of mr had because condition would not have been that great with the lack of prescriptions and other treatment records so it discounted and is part of the record is unfitting but the combined nature of the o c d with that especially as it relates to the impact of his ability to drive which is which is an issue that the p b r so you're saying that these records just show that he was he was on a lot of prescription of the importance of of the records as supporting or undercutting his credibility in his decision being based on on its view of his credibility so in attributing the lack of these records as undermining health medications as well which was more specifically referenced by the p b r as as lacking ok what can you explain why you think that for sixteen from two thousand and eight the national defense authorization act congress has stated that the military departments and secretaries must apply the v a regulations to decisions as to one fitness fitness and ratings under of reports they cited themselves in their decision four point two so that demonstrates that the v a further that not only does it apply but also that the air force treats it as it applies to them to be a schedule can you show me where you raised that the that there is there if there is not to clarify your honor there is not a specific we did not say for sixteen b applies prior to the final decision of the p b r we raise the general we said fourteen we asked for in  apply that should be read to mean that we mean entire section to apply and develop  because the administrate nature of the underlying proceeding at the p b r there is an end of an opportunity until the administrative record comes comes together if there's nothing relevant to to to to talk about there until the rd time when when they  and again coming back to the importance of the records coming in the relevance and why they are needed for judicial review the problem with the questioning of mr had makers credibility ability or would be relevant to the conditions that you are going so why not admit that i mean at some point doesn't it is their right to say too little too late in the in the context of a r any right or any administrative agency that you then have a right to go back and see to refute that rationale with additional records even if in your national law or to put it another way don't have the burden of presenting evidence which is in your possession which you believe supports your case and clearly you believe that those additional medication support your case now the context of  i had to go out and get treatment elsewhere it seems to me that cries out for saying and here is the records of that if that were relevant to a normal normal determination your normal step by step determination of the issues are whether or not a condition unfitting in the st place and then if it's unfitting then you apply the eastenders prescription treatment for for either condition is not a predicate for or unfitness certainly but you know in the abstract and then on top of that the government should assemble the administrators record to make its decision on that so this is the issue of the negative evidence by going outside of the record and saying that we make these findings based on what's not there that p b r should have been confined to what it actually did look at and if it could have could have said well these don't don't don't support the evidence can't say because these are these records that may or may not exist are are not present that was the burden on the government and as part of the administrative leaves the military he submitted an application the application form specifically says you will be given at least two weeks to submit documents it says if you make no specific assertion the board will search the record it has the military is required to do the effect that service the records from him and so issue or the twelve documents that he p c made it to a yes campbell smith she said that you look at those and and to discern whether they would have made any difference in light of the nature of the board's analysis they would literature as having coming on very quickly inconsistent with his reports on his medical records and then sort of subsiding over time a nd sort of vertigo which is which was described by the proximal positional vertigo described as left lasting only minutes if you stand up quickly or you shake your head or something like that and so that's not the sort of thing that really makes any difference but was was important not only understand the nature of those diseases what was important was understanding whether these had an effect on his service and they apparently did not in fact when you went to the v a in two thousand and eight having left the service five or six months  bottom line on this business is that the documents he offered really didn't change the record at all the other documents he did offer with respect to o c d were again the question was whether there was an error in referring to the fact that he had not taken sick alice graham after february of two thousand and seven but the board didn't board record contained other evidence he was taking other kinds of drugs what about the relevance of for sixteen the as the court has been discussing it with mr perry what's required is if you have if you have more than one grade a bill disease that would be rated at least forty percent in total the rest of them out to seventy percent on that basis he was awarded seven hundred percent having already been at ninety percent in two thousand and ten so for sixteen a has always been the picture it's where he stands now in respect to his rating at least as far as this record is concerned it's what he mirrored both as application to the board and his identical description of what he was doing again mirroring the language of four hundred and sixteen dollars away without naming it and then finally he he referenced it specifically in his st motion project on the ministry of record specifically set for sixteen a that caused such cannibal smith understandable as she explained in her reconsideration motion to focus on for sixteen a and she described in argument yeah ok so you just answered me with another waiver argument what i don't really understand this and maybe maybe you're not really making this argument but do you really intend for sixteen he does not apply to the air force even though or sixt seventy's you're going to do it the way the v a does it basically were sixteen b says it's the policy of the v a and perhaps that wouldn't be distinguishing factor there but then it goes on to say if someone is an employer will basically there is no evidence of that when he was in the military of course he was actually employed that he was in the military and the record to suggest he's been employed since then although now this is apparently his troubles are such that he finds it very difficult to get employed but that was not the case back in two thousand and seven when he left the service anyway it says the record will be sent on to the director of compensation services of the v a it's not particularly you would expect that you know do you would at least under the regulation then would be sending documents on to the v a to determine director rich schedule or consideration of all cases the veterans who are unemployed that's right is this not such case it certainly was not in two thousand and seven and in fact even fitting condition coming out of the air force ten percent for o c d fifty percent for sleep apnea and then asthma was deferred basically asthma later on was was rated at ten and eventually got up to  original administrative record at two hundred and fifty seven entitled described as entitlement to individual employee ability and there they describe it as being rated as one hundred percent based on them and employee ability  to the air force two dollars and not to inject this it's certainly not in the record but just my practice is for these military boards the majority is before the physical evaluation board at the agency level is is the overarching physical disability evaluation agency and director has made decisions in the past under under the employability regulation the only other issue there is like to point out to a court is that  currently the v a does provide ratings for military cases disability cases under the integrated disability evaluation system i guess that's accomplished where again it's two thousand and eight national fence authorization act congress directed that  the military secretaries and the v a secretary confer and see if they can work out a system where the v a provides ratings so if there isn't a disparity between military ratings and v a ratings applying the same schedule what i guess has been accomplished under is a memorandum of understanding so it's not binding but it certainly can be achieved at the v a can apply ratings under whatever theory to the to the air force and