cook specifically that that involved decision by this court did not have cause to nor did it interpret the provisions of thirty eight u s c capital as a the court  not rely upon an examination of the language as this case requires that statute but rather relied upon the tenants of russell to demonstrate w decision in hair should be overruled on the basis that it remains pending in cook the court apply the law as q as it understood it to be based upon the very issue that is being presented by this court which is whether or not that is or is not a holding in the court in the russell case and its subsequent progeny as to the question of the requirements to establish a claim of clear and unmistakable error the issues in cook or whether or not to overrule the decision and hair the grave procedural error and whether that renders a decision on addressed that and your argument has been was rejected and in the cook case why is that the case here well as i was explaining on it's not the case because the cook case did not have occasion to examine the language of the statute the cook case only examined the existing understanding of clear and unmistakable error as represented by russell and its pro y the discussion in cook was not necessary to address the question of the interpretation of the statute as is being asked by mr blanton in this case you're saying that the portion of the case that would arguably apply to your case is just picked up yes your honor it is because it relies upon dicta and that is the very point of that is presented by mr blanton's appeal whether or not the holdings or presumed prior presumed holdings in russell and it including cook constitute because there was nothing required in the russell case for the discussion of or the establishment of the very specific  court should or should not overrule hair and whether or not a duty to assist violation could constitute it given the current understanding of the law and at that point everyone accepted the proposition that russell was properly decided and the point congress adopted a sensually the exact language from the regulation that that same case law would apply equally assume it was defective would we not have to urge our colleagues would not judge raina and judge stolen i have to recommend that this case be caking in banking order to achieve the result you want because we have to be overturning all these cases of ours well i certainly think that that is a alternative for this panel however if the panel accepts the proposition that the language in russell which is the language that assume let's assume you're right that it is dicta ok would we not be then in the position where as the court we have said we're adopting that statement and something can be dicta but benefit higher court comes along and says we adopt that as a rule of law it's now removed from the dicta it was that so what difference does it make if we adopted the rule stated in russell as the rule of hardcore what difference does it make that it was dicta and russell because of the fundamental concepts of stari decisis the purpose of s difficult for a veteran to meet are not standards that are reflected in the language of then the regulation and now of the statute i am asking this court but mr carpenter later which is not sorry decisis is accepted as a holding and that what i'm asking in this case is for this court to look to the plain language of the statute and see if there is any possible way that the standards can be extrapolated from that language specifically when the only thing that is clear and precise in the language of the statute is that it calls upon the submission of evidence to establish a clear and unmistakable error none of these legal standards articulated in russell issues that were presented to the in court that that that the notion of those principles in russell had nothing to do with whether or not this full court should  overrule the decision in the air and then once overruled go to the question not of the legal standards that were articulated but what a subsequent expansion of the russell doctrine  which was to say that the duty to assist is a bar to a claim a clear and unmistakable aerschot carpenter as a as a settled prudential matter in order to achieve the result you want protest against that action i am simply trying to clarify in response to the questions from i can brace that action is the only way one can ride  continue i'm sorry i didn't hear ok you may continue oh ok well actually i think this is probably a fairly decent stopping point i question of whether or not the language in russell is dick the and whether or not the language in cooke potentially is dicta as well and whether or not based upon the plain language of the statute the full court should reconsider this matter  would your honor and i apologize i meant simply that i do not recall having specifically made the remedial purpose argument well it just seems to me that your argument doesn't have much much l overrule long established law that we've applied in many cases and it seems that this argument has already been raised and considered by this by this court it well your hon with all due respect i was counsel in cook and the arguments that were presented in cook were in relationship to the two specific questions that were presented by the full court i what i what this argument is about is what the language of both the regulation and the statute say and that you cannot extrapolate from that language which talks in terms of evidence to mean that there are these onerous legal standards that were articulated in russell and in particular i would point the court's attention to the fact that in the same regulation that is the secretary allows himself to present evidence that was not of record at the time and i presume that was my warning but i am out of time yes