the board relied upon a misinterpretation of this diagnostic code and this regulation we don't believe that the veterans court every press the question of interpretation except by relying upon the presidential decision and fountain and disagreeing with mr costello's reliance upon the decision in fountain to be persuasive as to the interpretation that was being proffered the interpretation then was not addressed by the veterans court and the failure to address the interpretation of that regulation does is brain trauma under fountain and you're now making i think a different argument one that points to the regulatory the diagnostic code language as  trauma and i don't recall an argument being presented to the veterans court that directed the veterans court to focus on the term symptomatic  of and interpret it and it seems particularly important given that our jurisdiction is limited to legal issues that you know a particular contention about the meaning of particular words a legal source be part of what was presented to the veterans court and i think the government says you  that we disagree in this regard your honor the issue that was presented was whether the board relied upon a misinterpretation of this pacific regulation when it found that there was no clear and unmistakable air i do not dispute the counsel below presented the argument in terms of what he understood fountain to mean in terms of  that in our view does not prevent this court from considering the question that we believe was not considered by the veterans court which was whether or not the board  argument that was raised below that there was something in the briefing to the veterans court that signal to the veterans court that it needed to wrestle with the language of the diagnostic code and provid interpretation the latter part of your statement is our position and where in your brief would let's assume i was a judge on the veterans court where in your brief would i see something that would communicate to me as as a judge on the panel that i would need to decide whether recognized that symptomatic of brain trauma should be understood as  potentially capable of or could be recognized that symptomatic of brand trauma your honor i will concede that mr costello's lawyer below presented the issue in terms of his understanding of the decision in fountain as having addressed that issue however what he presented in his brief as the issue to be decided was a question of law as to whether or not it specifically references to this now i do not assert to this court that that as the earlier part of your question framed it that it was presented to direct the court's attention to the specific language that is now relied upon in the appeal that has been brought before this court that that was not the case but the question here in my view is whether or not that constitutes a waiver or whether or not the question of law the interpretation of the regulation and the diagnostic vote were in fact presented below it's your view they were that they were because of the way in which the issue was presented as to whether or not the board misinterpreted that specific regulation yes not sure i understand what you mean by available you know that it was available for the court to consider if anybody had raised it know what i'm saying is that it was raised by the way in which the issue was framed in terms of whether or not the board of that prince appeals misinterpreted that specific regulation veterans court that connects to the argument that you're making now such that i can see even though the argument below wasn't in so many words as you're arguing today nevertheless provide some kind of logical bridge to what you're arguing now give me just a moment to locate the r having trouble with my computer getting to the right page secretary that that just simply is not our understanding of what constitutes a  that mr castello did in fact make some sort of version of the argument he makes here but we'd like to point your attention directly below that heading mr castello argued based on before this court mr costello no longer argues about the correct interpretation of the phrase brain trump in fact in his brief to this court mr costello seems to recognize that brain trauma is not tantamount court does not directly control the outcome of this case so that again demonstrates that the argument mr costello made before the veteran scored by relying exclusively on sound and the argument he evidence whatsoever of brain trauma then under the plane reading of the regulations at the time that complained of tonight and would be entitled to a disability rating of zero percent be of no further effect but it is that putting it too strongly well i don't think so i think that's correct it seems that mr castello is arguing that if a veteran comes to a regional office and complains of tonight and then even if there is no evidence whatsoever of brain trauma and here by the way there was no evidence of brain trauma and the medical records th reconcile the regulatory provision that issue with other regulations related to it and so to properly interpret d c eight hundred and forty five dollars the court has to reconcile that provision  i'd like to respond to the government's hypothetical which is that the veteran walks into a regional office that is simply not the circumstance here the circumstance here is the veteran was found side that if we were to adopt your understanding of eight thousand and forty five then there would really be no work for sixty to sixty left to do that there would never be a situation where a veteran at night is would ever be conferred a zero percent rating under six thousand two hundred and sixty four i guess another way to put it is can you think of a situation where under your interpretation of eight thousand and forty five there could still be a veteran diagnosed with tonight as that would get the get nothing more than a zero percent rating for tonight just because of sixty statutory genesis of the rating schedule the rating schedule is a product of a mandate from congress by statute directing the secretary to create a rating schedule and the rating schedule is designed to assign rating criteria for the average impairment in this case it is our position that in doing that the secretary chose two different routes under the two different diagnostic codes to attain compensable versus non compensable compensation and in  differently is there an example where someone who is diagnosed with tonight and would not be capable of being recognized as symptomatic of brain trauma yes i believe there is is what would that example look like that i have and i'm having trouble understanding how that can be the problem here is is that there is no medical understanding of the  tinnitus and the medical evidence demonstrates that it is not the product in the judgment of the medical examiner from brain trauma but rather is in fact from acoustic did establish that in this case we have a diagnosis based upon examination both in service and following discharge from service in which the veteran was found to suffer from tonight as the only comment made in the rating decision was the attribution of source to the veteran as opposed to the medical evidence that is where we believe that the clear and unmistakable error was made by not considering that answer you satisfactorily presented a example of your honor that's fine ok thank you i think the panel has the arguments from both sides and  would encourage the court not to consider this as having been waived and recognize that the entire function of the clear and unmistakable error is accomplished based upon the correct interpretation in this case thank you very much james thank you mr carpenter this matter