arbitrary gracious and the veterans court most certainly misinterpret thirty eight c f r three point three two six which was in direct contradiction to the plain language which says that it does apply both for the board and at the veterans court we argued that mr williams of course the v a failed to provide an examination we not focus but wh why wasn't he given an examination and the answers because the v a believed that they had already provided an examination three point three two six says it applies to any cli a veteran's administration examination must be afforded in any disability claim they had an examination they had these hospital records from august sixth largest tenth and they said this is our examination first are disorder the claim is not complete and they proceeded with the denial the problem is that examination was not valid by their very own statute which explained what an examination is and what it must contain and these records this patient intake form completely fell short of what a valid examination would be and at that point the regulation nineteen point one eighty two required that the case be remanded which it was now th e failure to provide an examination is clear but that's not the basis of the q challenge the q challenge is based on the while why wasn't the examination ordered and the reason is because they thought they had an examination all right they weren't going to provide an examination this is a claim that was submitted and it was reopened and continue the do not they believe that this intake form these progress notes would satisfy their requirement for an examination and then they weren't going to provide yes but the harm being that he wasn't given the same rights that someone should have received in his position had the regulation isn't it true that any time that he fails to order a medical examination that it should have ordered it was some underlying we go air perhaps however the v a is far too broad and wishing to bring a key challenge under the guise of the v a s duty to assist and that was evidenced in in those decisions when no one alice this was conducted to understand why this regulation was misapplied or why it was ignored and instead it was if you're going to challenge anything about an examination we're going to claim duty to assist and then they're going to right afterwards cite to this court's cook opinion and that that's that's unfair to the q challenge which says that by not following that statute or i'm sorry by not following the regulations that mr williams did not get the proper administrative actions that he was afforded and as a result of it it most certainly manifestly changed the outcome of of so if the veterans court actually made a fact finding that the failure to have conducted exam in this case did not prejudice your client even if there was a failure to conduct an exam we can't review that finding of prejudice because that's a fact finding and we don't have authority to review that so i don't see how you can meet the q standard in light of that even if i agree with you entirely on your regulatory interpretation argument on breach of the duty to access to assist on this the second holding why is that three point three two six and three point three two six seven applies only to original disagree with mr williams that three point three two six and a subsection a clearly applies to both reopened and original claims but mr williams did not argue that three point three to six they applied he only referenced three even if you accept that that claim has preserved and even if you accept that that the judge misinterpreted it in its decision three point three two six and a requires that there must have been a reasonable probability the claim for benefits is somehow that the medical claim is connected to mr william service that was never argued to the veterans court that the reasonable probability plan had been that and a reason why mr williams have to never demonstrate a reasonable probabilities because in all of the administrative actions that have taken place there was no sign whatsoever from the secretary that they believe that there was no reason for probability of client quite the contrary they accepted the climb even though it was not adjudicated properly they went through a process the board made a decision in and they made no mention of mr williams not raise in a reasonable probability of a valid claim again the board had a chance in two thousand and fifteen to say that mr williams has not raised a reasonable probability of a valid client and they did and that's because it had been established he had raised the reason probability that's why they went ahead and adjudicated his client to say that he hasn't met a reasonable probability after doing are that it administrative action it just doesn't seem to make much sense however if that's the secretary's position then they should be given that opportunity to explain that on remand because that most certainly would also be a find in that would have required them to explain the reasons and basis in the board decision which which they did not a manifest in different outcome in the context of q refers to a determination on which the action was predicated in this case the decision that action is a denial of course that was the action or what are the determinations on that action well they determine that the record was complete they determined the record was correct and they went ahead with an action which is denial however if those determinations are different if the record was incomplete if it wasn't correct then that would require a different outcome the board has three possible outcomes in soon from any order here and you have a denial a grant and you have to remember of course if you're granted that's the end of the game it's over and you get what you want if it is denied you have the judicial review every man you have the opportunity to add more evidence to the record all three of those outcomes you gnash air anything in common there are no similarities between the three the government's position regard to mr williams is inherently weak for one good reason they've never dealt fairly with m now from trauma from the enemy now from combat but soley from the pure racism of his commanders the commanders in his united states ar drove him to a mental breakdown and the government knows that he's one hundred percent service connected because of it for them to say that in one nine hundred eighty to a year to three years after he's leaving service that there's just nothing wrong with them at this point yet in two thousand and one service connected him and related specifically to the races treatment he suffered while in service make a difference one way or another whether he got an examination it doesn't matter whether they gave it to whom or not we know he they failed in giving the exam why did they fail they thought they had an examination on file the regulations said they have to have an exam they said we have an exam  the v a is required to follow their own regulations and if they had not met their own laws then they were required to remand the case they