because we still had rights that belong to us at the hearing at the director level the regulations don't provide for me man and take procedure that to a hearing officer to our knowledge that's never been done by the b g director they were even able to articulate to us exactly what this process was and the regulations pacifically provided that during an appeal to be a director that their petitioner should in fact submit new evidence and so the regulations actually  imagine that if you're peeling your case you have some new evidence to show the director and the director is given all of the authorities here that just the hearing officer at that time we've already had the claim before that you can see for several years and it remains the hearing officer meant several more years because if we were denied the claim once again and be back in the position of appealing to the director and given that the regulations fully took care of all our needs give all the authority to the director and furthermore the hearing officer decision we were appealing relied only on the findings of the falsified autopsy report that had been determined conclusively to be false at that time we couldn't imagine any reason that the b j would need to collect more evidence but we noted in our opposition that we were fully open to cooperate with the b j on anything that needed more evidence on and in fact the b j exercised that authority it's not more information from any of his office and from the firefighters they sent some letters and from us as we firefighters because they said that evidence if it were received it actually could have cleared up some of the perceived inconsistency is that we're not certain in the case we presented and they never notified of that of us we didn't learn of those letters until we actually received the final agency we intended to argue that the autopsy was falsified it had been proven by the state of florida at that time and she said well if you're going to prove if that's what you're going to argue i'd much rather receive on the papers anything that i could hear at oral argument and we took that to mean first of all that she would inform us if she thought that there was any reason to hear the witnesses or that for some reason the affidavits were not informative and secondly we did that in full reliance on it beyond a reasonable doubt standard that if we could raise any reasonable doubt that the autopsy report which was the only medical evidence available the only one who looked at the body and took any blood samples was the medical examiner that if we could plant any reasonable doubt as to the libby of those results given that it's undisputed woodward stood in front of a fire and put it out for at least fifteen minutes if not more and that the bathroom was full of toxins and chemicals and that if that is disputed that there are there would absolutely be a reasonable doubt and so in reliance on that reasonable out of the one window that came out of that bathroom and that again is not disputed in the record but the p g a director didn't give any weight to that fact it wasn't discussed at all except in the fact section that he stood outside and put out this fire and so there is either some assumption by the beach a director that the fire was not releasing smoke or an assumption that somehow the smoke went around mr woodward or that he somehow didn't inhale the smoke even though he was standing in it but none of that was articulated that fact that he put out a fire for fifteen minutes is undisputed in the record that he was the firefighter who held the hose is undisputed and that would have put him in close proximity to the fire which absolutely establishes that there was a traumatic injury we believe without any evidence to rebut that fact j director left received from us evidence testimony from mrs woodward that the bathroom was full of toxins and received evidence from our experts who considered that evidence and said that smoke inhalation would have been a cause of death but yes but the bathroom which showed more evidence that was completely ignored including photos of the extent of the fire damage the true inside the house the house thirty five thousand dollars worth of damage and there are photographs in the records showing extensive fire damage so somewhere the smoke ha to go somewhere and some of it went into the rest of the house but you have an open window that either broke or it was opened to get the hole was in the water going through the window that smoke would have naturally been pouring out of that window particularly given that he was standing in such close proximity to it and there be another determination of the evidence and the evidence by the b j director on this court can make a decision on a summary judgment type of standard that the benefits should be awarded and we could if the court sees fit avoid that by having this work award the benefit that was done in by the federal claims court in vice and it was affirmed by the score so this court has the authority if it finds fit to grants the benefit and we think that we have clearly shown that not only is there not substantial evidence and not only was the wrong standard applied by the j but that every shred of evidence in the record is actually on our side this isn't a case where the agency weighed conflicting pieces happened and on that basis given all the evidence we've put forth we think that this court can grant us the drug we're asking you to waive the evidence as a matter of law under a summary judgment standard because there really isn't any conflicting evidence inherent problems in each piece of evidence that we put forth we put forth so much evidence and aside from the evidence where they found conflicts they really didn't consider a lot of evidence they had to they didn't consider our for instance assuming that there was heart disease or heart attack under bikes it's really a question of whether smoke inhalation was a substantial factor in the death and the director recognized that so it was on us according to the director to show smoke inhalation and the way this is supposed to work under the old regulations is that we put forth a prima fascia case of smoke inhalation and then the burden of persuasion is no longer on us that we only have to show reasonable doubt as to whether there was smoke inhalation and b finding there wasn't smoke inhalation what the director essentially found is that there was an absence of proof of smoke inhalation and there is no substantial evidence because every piece of evidence we put forth that shows smoke inhalation is not controverted by anything else in the record risk factors risk factors are not causal they're just correlational and a director improperly applied his own medical experience knowledge the extent that he had it to find to make findings not only  that that firefighter woodward had heart disease but that he died of a heart attack and the only place that's ever come up in the record the very first time that mr woodward was ever found to have heart disease was in the brooklyn falsified a the new regulation bird almost two months after that so they were on notice of the new regulations that have been promulgated at that time and certainly would have been on notice given the notice of proposed regulations but in two thousand eight  red it's a longstanding policy to apply the regulations that were in place at the time of the decision and this court i believe in graf has has noted that it certainly permitted to do that address it specifically and it didn't address it specifically in the decision but there's certainly no reason why those regulations couldn't have been applied to claim as it was pending before the director but at that petitioners so say fifty fifty it would be changed to a fifty one forty ninth's the patterns of the evidence and even if that regulation shouldn't have been applied we contend that that is harmless  director did not find that there was evidence in equipoise in fact what he said was that the put to the claimants had not convinced him that smoke inhalation or part of an outside exposure was any factor in the death and so even under a have the burden to prove their case by a preponderance of the evidence and the only difference was this reasonable doubt they would be applied to questions of facts surrounding the thousand and six was the state medical examiner going back and reviewing and re re looking at that tops airport and basically coming to the same conclusion that the cause of death was heart disease and simply changing from a from a natural to an accident with the amendment that the stress associated with a house fire and probable smoke exposure could work contributory factors the only basis for the medical examiners notation that there was no exposure were the very same two thousand five affidavits provided by the claimants which the director found to be not or entitled to little weight so we think that the result is the same in that the cause of death for me in the same and the only evidence of smoke exposure means the same factual affidavit since two thousand and five that are remarkably different from the factual accounts that autopsy that other evidence circumstantial evidence non medical evidence things like that could and should be considered to demonstrate that smok inhalation was a substantial factor in the injury and what the b g director said was even considering this evidence what you have provided to us does not demonstrate that there was any significant exposure to to smoke smoker because smokers can actually tolerate more smoke than nonsmokers then that would have been proof that the b j would have accepted and has accepted but it's also the case and we know this from the decision and vice that  look at other evidence besides simply the c e o h p levels to determine whether there's any other reason to suggest that the petitioners are claimants have demonstrated that and the  octor did so in this case and concluded that given the facts as the director found looking at the conflicting evidence i think it's hard to say that there's not conflicting evidence and there wasn't a fact finding that  had been made by the actor here found that there was the fire was put out quickly that there was no symptoms no complaint symptoms no complaints of distress no other firefighters had any respiratory problems that they reported that n came back a few months later and interviewed all the firefighters that were present that night none of them reported that he complained of any symptoms or complained of any any snow until a cat in the chest pain reported to the  that there had been an autopsy performed and so there were no justice here and there were no objective tests to say one way or the other whether it whether carbon monoxide poisoning had been a factor but i think the same principle is here is that the b j is free to consider nine consider other evidence such as descriptions of what happened that night to paint a picture of  what happened and whether it's more likely or not that smoke inhalation was a substantial factor in the heart attack and here he found that the petitioner simply hadn't met that burden discrepancies in the factual account it's not as if the facts could go one way or the other and we have markedly different accounts of what happened that night and be director was required to consider that and make case even where there is no oral hearing or opportunity to consider oral testimony those credibility determinations are entitled to substantial evidence and are there  particular regulations were in that case i don't know that that that what i can say is that i know in other keep it in case after case after case b d a has applied a makes regulations that are entitled to chaperone deference they are entitled to share deference i think i'm not sure that informatic specifically address when regulation should be applied to pending claims new regulations should be applied to well conduct we have to look at what the petitioners would have done differently had they known about the new regulations and in this case they suggest that they they would have perhaps h applied to us we certainly would have been able to provide additional material to the agency and i think that our motion to supplement to this court is indicative of what we would have been able to provide to the agency had they let us know that  there is there was no recourse to produce that kind of perfectly medical evidence and there was a piece of contemporary contemporaneous evidence that smoke inhalation occurred and this is the e m s right report this is this report was filled out by the paramedic matthews and his report reflects that mr woodward reported smoke inhalation and chest pain as a result of that this is immediately a very shortly there after a fire and this is a piece of contemporaneous evidence in the b j director ignores this piece of evidence in making its credibility determinations and in developing its story of what how and that day regulation and to the state deferment regulation which is also an older regulation and so we expressed our reliance on the old regulations to the p g a and they never corrected us or came back to us to say hold on you know the standard is fired and certainly because an agency has a policy that it can make regulations and apply the merger activity director activity that doesn't mean that that policy trumps the case one last point about  credibility determinations the government argues that it is almost near impossible to review them however this court has reviewed credibility terminations in the j c equipment case and  pain she finkel said he he described a burning sensation as chest i don't see a contradiction there that's not a round square that those those those two statements written do not contradict and those are the kind of credibility