was whether there was new material evidence had been presented it was step which nervous condition condition previously not when you're dealing with new immaterial evidence you're dealing with a fifty one zero eight question of jurisdiction as to whether or not the a was obligated to reopen the board in one nine hundred eighty six never got to the merits because they determined that there was not new material evidence and therefore did not have to get to the merits but that you are making a factual appeal here jurisdictional question and not a question of the resolution of the merits and then you get back to the significance of seventy one five which is seventy one of the five expressly says to the v a you must happen the appeal is supposed to be granted or the appeal is supposed to be withdrawn and if neither of those two events occur then the v a must submit to the better in the state of the case that fact is not in until the appeal is resolved and this appeal on the merits was not resolved until the one nine hundred ninety five four decision when they did favor resolve the appeal where there is not any for at that time and made essentially a merits determination and that is a misstatement of the law you cannot make a essential decision of them merits of a claim when the the but that's why i say it strikes me as more a misstatement of fact than that the question you're best of raising is a question of fact or at least application of lot of fact well the one we're dealing a rule of law fear a rule of law read by this court of implicit that not that rule of law is subject to an application of law to fact review by a disc or so that is not an exclusion from this court was it the board of appeals level it shouldn't apply here because they never actually made a decision that would count as a subset right decision of the earlier undecided question that would be great i ha or along the path to saying just where things stand and what needs to be done next do we have a case which is type unsympathetic if you look at the way it has evolved decided in one thousand nine based upon to have it is that in nine hundred ninety one that there was a service connection and that was based upon the benefit of the doubt when looking at all the evidence that appl time but he had obviously significant emotional or mental issues p t s the what he was given one hundred percent later in the research decision this as you say he was actually notice as a result of the eighty six decision yes it is true that yes i mean if you look at that languages will reach fifty five and it's a blanket statement that service connections are two night for a nervous condition it makes no reference to what happened in one thousand nine hundred four and it in fact as has been that there was a review of the entire then a review of the entire record decision did not extinguish the appeal it did not resolve the appeal that was initiated by mr jones in one thousand seventy four and that's part of the fundamental fairness here applies for purposes of this discussion board appeals well yes your honor but i don't believe even if you do that you can assume that williams applies to a appeal because williams did not involve a deal and appeal a final resolution of the adjudication of the merits because it is not until that time that the matter is fully decided and how it how do you read this sentence on page fifty four and as it is a decision dealt with the original decision or the pending appeal of the nine hundred seventy four decision that focused on this court decision can only have what mr jones on notice appeals something that had not happened before and in fact was contrary to the rule that was established in by its not quite correct is it was took our order that the eighty six decision only dealt with what happened nervous condition right so that's a comment about the nineteen seventy seven state of affair that's correct and that is a misstatement of the wall if you suggest that that