evaluation of whether or not he actually meets or met at that time of his separation of two thousand retention standards if he gets those retention standards so you would out you would assume if you were to compensation needs to be a finding of the percentages under the v a schedule that the plaintiff would be entitled to and without a lot more fact finding and development of that i don't see how it's possible allies let me ask you just because i've been focusing more on the epilepsy the section of forty gosh i don't want chapter three that deals with limitations of range of motion and there's several possible ways you can satisfy failing retention standards one is whether it's evidence that mr brown submitted but in the in this discussion session you really didn't just need a conclusory there was no showing that he meets the or fails retention standards and that's really part of the problem is that we did not address that so any sort of guessing about that is is very difficult to do because there's no real explanation of why they found with the found and then after that during that time period if he has another soldier another seizure during that period of review it automatically goes to the p and so are you claiming that that's you fall into that yes ron has another  it was was when you had that first seizure and then when you're looking at it and saying no you're good to go in december for five months after he left the army are saying you're going to go is controlled by medication that's four years too late he had three or four other seizures in the meantime dislocated shoulder broke his face falling running but i thought that was a fine being and i didn't think you i didn't see where you were disputing at that when he had another seizure he was supposed to he had not been taking in the amount of the dosage of the struggle ever it is that he was prescribed and therefore ok let's fix this up and i think after he got on the three hundred milligram dose of it there was no evidence on the record that he had another seizure after that first off there's no records review it says right now and that's him at the it's at two forty three i want to say but it says no records reviewed and it's just a reporting of what he said i ask you is it your position th that it was not correct that he was taking that in correct dosage of one hundred milligrams with what he had been for scrying and therefore at that point when he had the second seizure he should have been s k what is the allegation that's before our court as to walk we should just lot that's the conclusion here that they followed the iraq war he wasn't taking the right treatment but they're to be exact that's a key issue here and it's not clear to me what it is or is there is an appropriately assertive but if he had been prescribe the one hundred milligrams and that's what he did it's been described and there was so a lot of it it hinges on whether or not he had been for scribe the right dosage or whether it was based on his own confusion so what i look to your brief to like ok what are you saying about this and it i don't see where your citation to the appendix tells us that he has a notation from the newer ologist about him apparently misunderstanding a proper dosage which seems to me to about the dosage is however the patient has been taking only one hundred milligrams claiming that he has never been full to increase it to three hundred milligrams that's the only reference i see here so what we have i the provision of the regulation paragraph for that talks about the six month period if the shift to sort of focus on that in this context is that provision talks about the he started off with as your own accord out of three hundred milligrams potentially many of the five hundred we don't know exactly what happened over the years between one thousand nine hundred six and when he had a seizure in february of two thousand we only know that as  five hundred milligrams and i don't know what else it's in and the level for five at five days so i don't know if this is  that the support for your statement on page ten it's if the neurologist also noted that mr brown apparently misunderstood the proper dosage and he did the neurologist make a statement that that is the ready  to to mischaracterize the evidence but it just seemed like a fair characterization to say misunderstood the sentence that i was referring to the page three seventy seven says that however the planet the patient has been taking only one hundred milligrams claiming that he had never been told to increase to three hundred milligrams and given the other on the steps on why there isn't there isn't evidence in between and so there's there are there's a lot of  talks about increasing it he didn't know he was supposed to increase it how can you rely on his initial three that language that's not even clear and says three hundred milligrams per well three days followed by something else how be requires us to send the whole thing back and not really address the merits of the f f c claims and the regulatory issues with the possibly wrong regulation whether that matters if we conclude that he did not in fact w if it's true if he is correct that the shoulder issue was not waived doesn't that require us to send the whole thing that to be looked at together the group you're correct the statute requires  s something like the lanton three hundred milligrams now three hundred milligrams tonight three mil hundred milligrams tomorrow something like that it looks like maybe it's a new prescription i don't know but that this document seems to be prescription then it appears that he didn't take the prescription as prescribed several months later when he had his seizure in february two thousand but it was discovered that he had been taking one hundred was i think the shouldn't was in late one thousand nine hundred nine so several months before so that's our position it on this specific issue is that on for the series you're that once he was treated once he was following the treatment once the treatment was initiated which when mr brown went to the corrections for the correct report consider all of the evidence that was presented to it all and all the medical records were provided side of that he was fit for duty at the time that he had been separated which was initially barnett tells us that we also know that this court reviews these decisions you know and so we think the trial court is correct and we think even even if you have a different basis upon which  observed to show that he's unfit for duty and ultimately the fitness question is what is at issue is whether because if he said for duty he does not he's not entitled to secondary point the ultimate decision of the corrections were reconsideration and it addressed the shoulder condition and discussed it at some length and decided that within the profiles and some of the limitations of his duty that were given to him because of just to clarify what is the standard you think that we use to determine whether or not there with leave or if that's a question of fact or law and if that which one what is the appropriate standard of review that you believe we pool so you're trying to have it both way he waived it because if he had raised it appropriately at the board then there would be no wait in a struggle you're arguing well in the alternative one it was wa suppose it is true  a as a as being unfair he talked about he couldn't do pushups he couldn't do any overhead work this is a soldier who's six squad leader in the army with communications gear which in paul's putting up content is lifting it's physical work so that by itself does actually indicate both feeling the tension standards but also as an indication of unfitness because if you can't lift expected of a soldier of that great ring ring or office which basically means your rank in what job you have in the military so you can have these any be conditions that are just a laundry list and applies to every soldier when you go over to the p c you really depends on your job because if you're an admin soldier and you're in the office doing having work all day well that's a different degree of physical requirements than an infantry soldier in the field running with a rock in a