here the first i think most important is the jurisdiction of the court of appeals for veterans claims to find out facts in the first instance when performing it statutorily required harmful error analysis this really turns on the meaning of section thirty eight u s c section seventy two sixty one see within the scope of that review the second issue is whether the court erred in failing to apply the natural effects flores as we've talked about in our brief the entire premise of the harmless error analysis as articulated both at the u s supreme court and your this court and in the veterans court is predicated on desire to allow courts to dispose of appeals without needless remands and i think we all agree that that's a very worthwhile goal however these courts have also explained that the idea of the harmless harmful error or at least a part of it is to ensure that the appellant is has a very nice in the process and a meaningful opportunity to participate the rule announced in this court in milot chick i'm hoping i'm pronouncing it correctly discuss appeals never considered any of those since you're not disputing this is better than you do you should try i am disputing that man yes yes ma'am when you look at the record i know that we can't you guys can't look at facts but when you look at the on page thirteen our opening brief there were three statements from his representatives mr zarrella never made any any overt statement on his claim the first two talked about asking for an increase rating the issue was whether he could reopen a previously denied claims and the law requires that to do that you must present new and material evidence the court found that the v a had never informed solder what he needed to tell the v a in order to reopen his claim or substantiate his claim so all along mr zarrella had been presenting evidence and asking for through his representatives an increased rating for his hearing loss which implies that he has already been service connected and he's just fine the asking for the proper rating his third representative which we ate which we labeled as the a b three and this is page twenty four of the appendix argued the only  or stated the only significant issue to be resolved is whether the veteran was in fact exposed to acoustic trauma in service in fact the issue was whether he had a nexus from his exposure to clues to trauma to his current decision disability so i would say in answer your question that he did not know what he needed to present and the board never determined that he did the court did at the very last stage of the process of this appeal so when we when we consider the harmless error analysis we must keep in mind that seventy two sixty one c directs that in no instance shall the court of appeals or veterans claims conduct a noble fact review and it is when you look at the structure of the statue the court in this court in well it chick talked about the fact that there was a  directive to review the record on appeal and use that as a basis to find that the court could in fact do conducted a noble review however we cannot find any case that specifically discussed seventy two sixty one see in the context of a harmless error analysis there are plenty of cases both at this court and at the lower court which talks about generally doctrine and the fact that the veterans court is not allowed to conducted an overview in the merits or based section or stage of deciding the appeal but nothing we could find ever discussed how that applies to a harmless error analysis how do you respond t a court of veteran feels is considering the rule of prejudicial err they have to always make sure the board is actually considered to prejudicial error is to need fact finding their own before they can consider it no ma'am they don't have to there's no predicate that the board had to have considered harmless error that doesn't hurt with or to be extended as a fact finding you're saying that the board has to take the fact finding in the first instance that's what your argument is right not whether there was harmless error the fact finding that the board has to make first is the basis for determining that it was harmless error so if the if are the words that go into that without considering the harmless error doctoring well there i would say i i agree that it's rare but there are situations and there have been other cases and i think fletcher was once not fletcher we sighted in to our brief at least one case where the court upholds the board's decision based on some other fact something that the board had already considered in another section not necessarily pertinent to that specific issue but the board had already considered that fact and said this is what we find and so we would say that we would argue that the court could use those other facts to uphold or to find a harmless error and in the context of harmless error there's not only fact finding that can find something harmless if the veteran was not eligible for the benefit by the matter of law the court can can perform that function under stress diction and find a harmless error even if there was an egregious error or if you know for some other legal reason that the veteran was not entitled to it or did not was not harmed by it then then they could find harmless error without going into the very detailed fact finding that is is not the purview of the veterans court and you agreed that and does not take into consideration seventy two sixty one c and i know that the panel is bound by precedent and so we are urging a and embalm proceeding to review that and consider the role of seventy two sixty one c within the context of prejudicial error analysis or harmless s we would ask for a reversal simply by well we would ask that you vacate the could the veterans court's decision because they exceeded their jurisdiction and remained there for a new decision that does not  have at the board ma'am yes yes ma'am which the board is all is permitted to do and actually is required to do by statute that's within their jurisdiction the veterans court cannot perform the din oval review and this case i think it would be appropriate because as i mentioned he never knew what he needed to tell the v a to substantiate his claim he all along said i'm trying to get an increase of one representative said that he was trying to show that he was exposed to acoustic trauma and i think that the danger inherent in the noble fact finding is what is highlighted here because i the board of veterans appeals the agency never addressed that issue they did say there was harmless any error is harmless which i would argue one doesn't tell us anything and two is not substantiated or may not be substantiated because there was no there's no meat to that in the reasons and bases was lacking to allow the court proper review of that decision the fact that mr zarrella knew what he was required to submit statement is that he was here is evidence showing that he was exposed to trauma in service which is one part of proving service connection to reopen the claim he needs material evidence the the issue i originally was denied because he did not have a nexus a connection between the acoustic trauma and his current decision disability so he presented evidence for one part that was not at issue he didn't need to show evidence that he was exposed to and service he needed to show that he was exposed that he had a nexus opinion and the danger is highlighted here because mr zarrella never got a chance to get a second review on appeal the vet the veterans the the board's statutory jurisdiction requires i'm sorry the yes the the the board's jurisdictional statutes require one to cision on appeal and the court is precluded from finding the noble facts for this very reason at a very late stage for a veteran who had three different representatives who all presented different things to the board who himself was pro se is that it is at a distinct disadvantage when the press conducted a noble review and this court cannot review facts so he's stuck with without being able to prove his claim in at all really because of the nature of when and when the facts were made and how the jurisdiction of each higher level addresses that actual knowledge and rejected the arguments presented to the veterans court that he lacked that that knowledge but this panel is absolutely bound by new house and well let's check which i also don't know how to pronounce and misters out a relative has not presented any arguments that would cause this court to take a non bank review and to reconsider those those decisions and i no i'm sorry he wants to if you want to reopen his claim i believe that's done at the board and i may have misspoken but in any event if he possesses new and material evidence that meets the standard he can come tomorrow and present that to  the v a and attempt to have his his case reopened which is part of the reason why under twenty one eleven the court can't do anything anyway because this court is bound to look at whether or not is substantial right so the question is does he have evidence that could substantiate the causal nexus between his hearing loss and who service and he's not identified any he's not made in the attempt to identify any he has stated well i could have collected this type of evidence but he's not alleged at this type of evidence actually exists so it at the end of the day whether it was harmless error at the veterans court lare level or harmless error here there's no e seventy two sixty one c discusses findings of fact made by the secretary which would presume that the findings of facts were one actually made and two were solely within the authority of the board to make decided by the supreme court in sanders in which the court said that while the much of the court may be able to continue to rely on generalized non binding assumption those assumptions are non binding and must be supported by case affect evidence so that that's his court still have the obligation to go through on a case by case basis in light of the record in front of it and make a determination as to prejudice the supreme court rejected this mandatory framework that put the burden on the secretary to prove that an error was harmless and that obligated the court under certain situations to just assume that all errors had a natural fact of being yes ma'am thank you couple things on i'm sorry one point on what the secretary or get we never argued as we said earlier that the b v a needs to find harmless error and that is review we need we argue simply that the the basis for finding harmless error at the veterans court should be based on a fact that was already been determined by the board judge laurie you mention that there were many opportunities for mr other throughout here to prove his claim but i would say i would just needed yes ma'am the only route to the yes ma'am well that's getting service connection but if you were to present it today has been if it would start today rather than our many years ago when he originally filed this claim and he's losing out potentially on ten plus years of back benefits and all of the other benefits that go along with that to include health care and some other things mayfield i want to mention and i apologize if this is at such a late stage with the i only read it last night on the plane right over here the veterans court issued a decision simmonds the willkie docket sixteen dash three zero three nine on twenty september and they confirmed that mayfield and vasquez flores which we argued gives them the authority to apply a natural effects presumption is is still good law and they  that they have that authority to do so under sanders and in my last minute despite the fact that the secretary asserted that mr zarrella never told anybody yet what evidence he has or that he has evidence however when you look at sanders the appellant simmons was in a similar situation was not told what she needed to be present to reopen her claim or to prove her claim i'm sorry and the court the supreme court said given the uncertainties we believe it is appropriate to remain in this case so the veterans court can decide whether reconsideration is necessary it's an analogous factual situation where there was some evidence for and against  and i would just also like to point out that the veterans court jurisdiction requires that the benefit of the doubt apply in all cases including under the harmless error analysis that may or may not apply in this case