we have only three cases for argument this morning and i see counselor ready we're going hear arguments in the united states versus williams administration decision review officer i'd like to focus first on one central issue in this case and that is according to the disability compensation regulations service experience from home or from his active duty that cause the p t s d the government at trial in here appeal has maintain has failed to distinguish between the threshold evidence necessary to establish that a veteran a certain cloth from official military records and on the other hand the veterans the late testimony that may be considered to establish that well it is there is our focus that that broad i mean this is a criminal conviction and the question is materiality is it our question is not whether or not he should be entitled to those disabilities and stuff it's not our question right that is part of the question because part of the d from her testimony she worked with the purpose of this informal hearing was to decide whether to affirm or set aside the v a s proposal to sever the service that was the issue before you pronounce it but right whatever the hearing officer will say yes that was the question before that hearing officer that was the focus no having been in combat what had a better proper objection your honor that's irrelevant yes you think i would be proper objection as well because of the regulations if you if you if you a that won't but it does say that the veterans lay testimony may be used and i going to quote exactly from three point three or four f if the evidence establishes and this is where the evidence consists of service records medical records immunizations the decision review office or bug could have been tired with the claims file so there was nothing in there to establish that he had engaged in combat which is why she twice question in the first place why do we even need to have to hear what i'm going to hear from him this is late testimony which there is nothing in she herself tested before she even had the hearing and she basically knew that she has her own testimony was now she didn't say why she just said it wasn't enough and you never raised this whole issue of the regulation as though that were basis you simply said she had made up her mind and therefore the evidence couldn't possibly be sufficient materiality because it didn't matter when you didn't rely on this regulation now here we are talking about three deletion i wonder if you haven't we've this argument well i don't believe i've waive that argument because it's very closely really laded to the exclusion of two defen experts because defense expert rather if you look at his record in syria there's a lot i'd like you to relate it to this argument which is your argument about the sufficiency of the materiality sure because you made a different sufficiency article below and you don't seem to be making that same argument now which is that she had made up her mind and it wasn't possible and you can see why she didn't say why she made it but that it was not possible for her to  understand what you're saying about the waiver but i argued i believe what she was saying without using the language of the regulations but i simply could not consider his late testimony at this point because the evidence that was available in his by did not corroborate his statement they'd be having gauged income that this combo give a higher benefit in other words if you have p t s d and it's just service related as opposed to combat matters here i don't know that it would if i mean beyond three or four am i don't know how though if you get more for combat or just in service it's the same i'm sorry i don't know the answer to that question if he gets more combat because i see with your implying is that well if i get if i say i was in combat i get a higher benefit i don't i don't think that's the case but i don't i don't know i don't know why they apply just the regulation even distinguish not between combat and typical and service that's not combat i don't know that and to i i don't know if there's a difference if there is a different payment scheme for someone who is in combat question i think there is a distinction between and service in combat and he had asserted that he was in combat and had p t s d and not bash and and so it seems to me it would be important for the hearing officer to delve into the combat well i think the hearing officer felt she didn't want to waste her time there is no indication from the service records that he inserted combat the issue that the two experts would have especially westcott would i would have testified to is that the deployment statement arms was really not material because decision review officer but i was required under three or four f to also look at non combat in service stressors that were included in its claims tell me if that makes sense to you you read this regulation in the statute to say so long as you really don't have a condition you by argument i think that if even the regulation pertaining to what evidence can be considered just backing it out of the step it's really three three point three  eight indicate that the record is supposed to contain all of the veterans service records so yeah i suppose a very pain go into why i only want but it has no said well i don't know any purpose behind this hearing because we don't have documents but yet the hearing was held right correct and inquiry was made clotted regarding his service correct and it is possible i think we all sitting here have seen it that there are errors in military records so the hearing officer questioned your client and said tell us about your history in combat and he did which caused her to do further research right correct so for her to try to determine whether or not it was combat related his statements that he served in combat and the specifics of the service were material to the actions of the cheap talk correct well i guess i i think it was material in the sense that she had an obligation hearing him to see even though she had everything she needed she found nothing  or thought she had a god she had she had everything and she had his deed to fourteen she had all of his military records he testified that he had these experiences in iraq  and he's like ok i'll check again but you know finding nothing just coming to the same conclusion as she had before the hearing that really what you're telling me has no bearing because there are no records i can find no records to support your your statement about service in iraq but but don't you think the fact that she heard from him and after hearing from him the statements that he made under oath she took action to follow wouldn't that mean his statements to her were material well i don't know what exactly but if you did to follow up but her decision was issued the next day so i have no idea what she did to follow up she had everything she had obtained all the records if you're going to obtain additional records from the military they usually don't arrive within twenty four hours for sure so mr williams wanted to have the hearings and he said fine thank you be the first person this week to find that i need it congratulations officers talking about that the question really before is whether the cert the stressors occurred in service and she does that is what they heard in service to give him the benefits and at three thirty one she says without deployment his benefits would have gone down and i think if you look at three point three zero four f two certainly talks about combat with change how these things are looked at and threw out the regulations of three point three zero three and three point three or four is talking about a look at the circumstances surrounding it and whether these are the type of circumstances that you'd expect that structure to be a problem for and so obviously if you're cleaning out blood in a humvee stateside that's going to be a very different situation than you're if you're cleaning out blood in a humvee you know in a war zone so your point case there's a case that we said in our briefs unisys versus hair that i want to bring out a bit more because we just us discuss it for the elements of the standard of review but i think it's really on all fours with this case and in that case judge ebell was looking at another one thousand  one and it was a twenty major who had submitted false statements to the department of labor for unemployment benefits and judge douglas looking at the sufficiency of the evidence for materiality he said this guy made these statements in his eighty eight form and his eighty nine forms and both times he continued to receive the benefits based on that and so based on that he said it is the ninety four material yes because you've received benefits in the past based on similar statements then when he makes that statement in the future that's material i think that's what we have here we ha evidence that mr williams is making statements that he deployed in iraq in two thousand and seven he's getting benefits based on that and so when we have this hearing then to see if he's going to continue to receive benefits and makes a statement again here that's mcbain for this rule to be really looking at this objectively and it says that the objective material out of the test focuses on the intrinsic capabilities of the statement itself rather than the possibility of the actual attainment of its end we don't look actually in some sense it what i think's going on here is it so that williams also talks about well if you actually received them before which in some sense would be based on a subjective approach in that situation or say well that's evidence that it's capable and so i think t find her her testimony some other contradictory because she does say that at one point at another point it's in the record she she says that she had determine before the hearing she didn't know when it was that he was claiming to be deployed and shoot that we call that being of that to go away but she says no that cheap she couldn't she didn't know when he was going to be deployed and if she knew that then she would be able to look for some more records that would help narrow that down so there is a point where she said i don't know why i need hearing was an interest of mine and then another point she says well i hadn't decided before that that the latest name would would not be enough at the very least even if it wouldn't be enough on its own it certainly if it would be enough with other stuff that means that something that would be capable of affecting a decision well do it did she do follow up research and was the issue was the decision to  think it really should be on plain air and part of that is if this court's going to get into the v a s regulations and interpret them in a way that's going to affect veterans benefits for thousands upon thousands of veterans across the country it really should have what the decision makers testified to which would be fine but to then trace it i think she's also trying to raise it as a legal insufficiency argument that regardless of what the testimony was or what the record was that this implicated never be material because it could at but we certainly don't have a case on point saying that somehow the state here just couldn't have been consider all i guess the other point that she raised and i think was with respect to the exclusion for extra she suggests that mr rather was somehow going to testify on the regulations and testify about this point that she wants to make now but if you look at three seventy nine to three three that's mr ruddle support and throughout his report this report is really based on an assumption that mr williams had in fact served in fact he talks about maybe the forms are wrong here and if you look at it maybe if you explore further you'll find that he had in fact deployed in all of those reporters really based on the notion of yeah if you deployed that does matter and he even talks about how we could separate out service connected versus not so that's connected so the fact that in no way was he going to suggest that this statement couldn't be material based on the regulations or anything else means his testimony was really  exclusion of the evidence which is what she says she's raising you need to show that the excluded evidence was material i e that it would have explicitly to him or created a reasonable doubt that didn't exist here i don't think that that was the nature of the expert testimony continuing benefits in the past are sufficient evidence the similar statement of the future is material that's all that are on the statements of the other doctors that she challenges i think usually have to be witness specific objections in order for them to be preserved in the reason is we don't necessarily know if this is residence day evidence or for a for evidence without knowing what sort of doctors these were what they were viewing if it was something from the distant past maybe it's that seems like it's more intrinsic and so we need to bring that out to know so i think it is playing a review in some sense it doesn't matter because i don't think she can meet any of the three which wasn't a rejection post  a quest for four or four notice and then with respect to two different doctors she suggested she sort of raised objections about that one of those doctors didn't testify at all the other one did testify but didn't make any of these didn't refer to peter's which are the two that she's challenging on appeal there are three that she doesn't even challenge on appeal either that have the same sort of information our special agent testified that these are the statements and just it was statements he made to this sort of thing it's going to get benefits from an agency that's what we're relying on for and that is not a character inference based on mr williams or any other book which is and did and did the court limit was there a limiting instruction  did i don't believe they objected so i don't believe there was a request there was no suggestion that there was four or four evidence in the in the record that we needed a little instruction on and so it had to be objected to in the structure and asked for and i think this court press and also says you only get you have to give it questions thank you thank you thank you both for your arguments this morning