one of which is submitted today in the brief for the oral argument namely appeal number zero six dash eleven twenty hildebrand versus tech manufacturing on the four case argument list will hear argument first in appeal number zero six dash seventy two fifty four had tricked versus department of veterans affairs mr carpenter good afternoon and welcome please proceed her  does not control what do you agree that we are bound by jury right absolutely so then your position has to be that you can clearly distinguish jordan and therefore we should do the same that's correct and the basis is is that  agree and as i recall the wording fourteen zero three it applies when there's been a change in an interpretation of either a regulation or a statute that correct there there was no no to give it a preexisting heart condition and the veterans or noted that as a consequence this matter was and always has been off the track of the presumption of sadness what wagner clarified it is that the hundred eighty six decision of the board of veterans affairs contained clear and unmistakable error because it applied an incorrect standard with respect to the requirements of eleven eleven were met that's correct it would leave now now if it used the wrong standard then it seems to me it must have misinterpreted the statute that's correct and in succeeding years both the general counsel of the veterans administration and the panel of this court in wagner gave a different and correct interpretation of the statute eleven eleven so i wonder if that doesn't mean that there's been a change in interpretation of that statute between one hundred eighty six and the present time but it seems to me that one might conclude that there has been a change in interpretation it may be that it should have been so interpreted from day one but in an earlier period the eighty's there was one interpretation of the statute seemingly by the board later in the general counsel revised the regulation later our court set forth an interpretation of eleven eleven much like the new regulation but the board was operating under a prior interpretation of eleven eleven compared to the one now recognized i guess by everybody so i'm saying that looks like a change in interpretation and the regulation fourteen zero three by its wording precludes c u we from being found in a situation where there's a change in interpretation of either regulation or is that you know i agree with you here there's no change in interpreting a regulation because the board in eighty six didn't rely on regulation but it did rely on eleven eleven and also eleven fifty three as you said so why five a bob failing to adjudicate under eleven eleven the second prong of the eleven eleven test which we can see on the face of their decision it seems to me to support the conclusion fourteen o three says if there is a change in interpretation i've heard of a statue or a regulation here it seems that there's a change in interpretation of a statute namely eleven eleven interpretation are you saying fourteen o three a regulation of the veterans administration has i'm understanding it is invalid because it's agency in the benefit of their state for the period of several decades in which they had a great life and that there ought to be a little on the difference between following the statute and following the regulations if they relied upon regulation was never decided and that was that's what we sent it back to be to be decided but on the remand it wasn't doesn't set forth who must make such a change i would think that fourteen o three would certainly apply in the case where the veterans department had one  time frame and then later had a different interpretation of the same statute for the same regulation but it's not clear on the face of it that this court is banned by the secretary's regulation basis of saying that regulation fourteen really applies to this court and prevent its decisions from affecting the finality of cases that recall correctly the veterans department had a changed interpretation and in jordan the veterans department had a change to protection but in this case patrick that court had to change why it wasn't done because in spite of  they stop looking at it from the perspective of the remainder order they should we don't have to look at that because with jordan jordan relies on the regulation and the regulation might be inconsistent with the statu precedent the first in time controls if there's some kind of inconsistency wouldn't that suggest that the veterans court should have followed her a human order and ignored the subsequent case of jordan even if it would seem to be applicable on its face by reason of the fact that the earlier in time controls if there are two federal circuit panel decisions that are inconsistent with one another  it decided that the issue had to be decided on remained by the veterans court and then the veterans corps didn't decide that very issue they were instructed to decide well it's a flat refusal to do what we  and it's based on a case that issued later and therefore can't dominate o consistent the question is whether patrick and jordan are consistent and the second question is whether jordan is even applicable and you said the two cases patrick and jordan are the  faction i'm not so sure you're right about that when i read judge raiders opinion in jordan it addresses the fact that in the jordan case the board relied on the old bed since invalidate regulation but in the patrick case the board never relied on the regulation it never cites or mentions or analyzes the regulations so that suggests to me that rather than seeing exactly the scene that the board decisions in jordan compared to the present case patrick are quite different and therefore that patrick hardly jordan is in applicable because it's a different issue lawyer that the earlier regulation which misinterpreted just that you should be treated as if it had never existed and generators opinion makes clear that they have rejected that said no you can't pretend a regulation that did exist and was followed didn't like that and he's just not allowed to engage in that kind of fiction that are going to have to be rejected in this case in patrick we don't have any such argument no one is saying let's pretend the regulation never existed therefore the argument judge raiders panel rejected not being made in this case makes this case sound different to me at least from georgia says he's rejecting an argument made by jordan's lawyer that argument is that you pretend the old bed read never existed no such argument was made by and therefore but the argument the judge rater rehearsed and then rejected was the argument that the original reg has to be viewed as void ab initio therefore you pretend it never existed illegal i think we have your position clearly must be reading the eighty six poor decision as applying a preponderance standard implicit rather than this that's a purely mandated clear and unmistakable evidence i