a couple of years ago and he ultimately decided to go a different way but i do know he has excellent credentials and on the strength  address is whether the veterans court misunderstood the v c a statutory framework when it endorsed the v a s fundamentally flawed process here penalizing a veteran mr r and when the v a could not locate his service medical records the second legal issue for this court is whether the veterans court adopted a non rebuttable presumption against the delayed supported judge newman we are not even going that far we are not asking for an affirmative presumption in our favor due to the absence of mr ruffin's medical records the secretary would have you believe that we're asking for an affirmative presumption but i'd like to be clear we are not we are simply asking for the negative presumption against mr ruff and to be removed sheir the records were regrettably l have the duty to see if that's true but to be honest i think that the veterans affairs at this point has satisfied their statutory compliance we've received a certification and we are satisfied with your honor i follow you completely and the request for relief is a vacate or of the veteran's court's decision and a remained for due consideration of the medical and light eviden submitted by mr ross and with out the overlay of this categorical presumption against him that delayed onset of hearing loss cannot be established and i will add to this that  line that's fair hensley is veterans court but then johndroe which is the one i refer to which is the federal circuit two thousand and seven which picks up the hensley strain and says that lay evidence may be used to establish service say these my arm i guess the concern i have is you you're here because you need to make a legal argument right that is here argue about the facts and now here we are trying to locate where it is and in the decision were there is some kind of legal presumption that decision makers made against against your client on account that there were no service medical records trying to find service i mean i'll just tell you right now when i looked at those decisions i didn't see anywhere where obviously they didn't say anything like that they were making a legal there was no service connection or delayed hearing loss or for sleep apnea so i think what i needed some help from you to point me to something that can satisfy me that there was in fact an improper legal presumption applied against your client let me do that i would appoint you to the special appendix page nine which is it's page nine of the opinion by the veterans court and then i would carry you over into ten eleven and twelve and this is the heart of the analysis with respect to hearing loss and sleep apnea with respect to hearing loss what the veterans court does is say here the examiner two thousand and sixteen subsequent to mr ruffin's opinion it actually says that there can be diminishment of hearing due to acoustical trauma during the service that is not recognized by the veteran but only comes on later and is exacerbated by normal hearing that appendix nine going into appendix ten in the last paragraph in the second to last sentence of the hearing last section here the examiner reviewed the totality of the evidence i'm sorry i'm submit updated audiological and lay evidence with respect to mr rough and symptoms and the connection to his service and the more is that we would like this court to say that the veterans court and the board inappropriate presumption to attach to the i o m opinion and i just want to get back to your opinion and your question judge chen which is when you look at the sentence here the examiner really digs reviewed the totality of the evidence which and the way the examiner treated this i o m opinion which is that delayed onset of hearing loss is a myth and then the result is disqualification you will never be able to establish service connection why because here evidence which is the only thing that is going to be insightful as to the in service period was disqualified as incompetent and then the post service medical diagnosis from dr debo was attached little weight because it was quote inconclusive whereas dr debo stated that mr ruffin was exposed to larks and artillery very high noise acoustical trauma and in his view it could have contributed to this delayed onset of hearing loss the same happens when you look at the late evidence section of the sleep apnea on page eleven where the late testimony is again disqualified in the final paragraph because why and is not competent to opine and on page twelve he and his family do not have the medical knowledge or training that would allow them to attribute obstructive sleep apnea to military service in each case in violation of a dro the court of appeals categorically in our view did discard the life testimony because it wasn't quote competent and to not medically supported no veteran can win mr ruff and was effectively prohibited from demonstrating a service connection for either his hearing loss certainly with the i o m opinion was may please the court and good morning mr roughen advances fact intensive claims that are beyond the narrow jurisdiction of this court the veterans court held that the board properly relied on medical opinions which in turn were based upon the available medical records and scientific knowledge those available medical records and medical opinions affirmative y showed that mr ruffin's service most likely was not the cause of his hearing and sleep apnea conditions but on appeal mr ruffin has argued to this court that the veterans court punished him or penalized him or created a non rebuttable presumption against him all this because he still had a statutory burden of supporting his claims even though some of his medical records unfortunately went missing but the veterans court did not punish mr ruff and by following the statute thirty eight u fifty one zero seven a little way because the veterans court did not draw any inference whatsoever from the missing records it decided this case based on the available records and the medical opinions now with respect to the institute of medicine it's been called the study but it's really more of a treatise the institute of medicine is part of the national academies of sciences and this book called noise and military service from the institute of medicine it surveys all of the available medical studies that are that pertain to hearing loss and what has been at the characterization of this treatise by the appellant is is not accurate there is no presumption against delayed onset hearing loss what the institute of medicine found is that based on the the state of scientific knowledge as it stands today if the veteran experiences delayed onset hearing loss from within a few years of an acoustic trauma there may be a connection but and this is the key point that was relied upon by the medical doctors who examined mr ruffin if the alleged delayed onset is a prolonged period of time many many years in this case more than two decades it's the institute of medicine concluded that the science says it's highly unlikely that there's a connection to that acoustic trauma that these are all highly fact intensive issues that were properly resolved at the board level and ultimately reviewed by the veterans court and this court has held in cromer as well as in chandru that the court cannot les evidence that was submitted on several issues was considered as competent before the board there was lay evidence about mr ruffin's commanding amphibious vehicles which were very noisy that was credited it no one disputes that he was around loud vehicles while in service also the lebanese that was presented concerning his alleged curing symptoms he was he provided testimony on that as well as family members and that evidence was considered by the board and weighed along with all the other evidence the only matter that mr ruffin was not competent to testify to was causation that his hearing loss and one nine hundred ninety nine was caused by a loud event or  ts back in the mid one nine hundred seventy s and that's something that science has to answer address a particular fact issue it that is beyond the jurisdiction of the court as this court held in jan drew their best case holds that the so there were questions remain and to reconsider that which was already considered and with the first time we respectfully submit it would be pointless because the veterans court properly resolve the factual issues in this service medical rescue records are missing lay evidence has to be given due consideration and i take your point judge chen that it is being given due consideration i would concede as to the observance of symptoms but where it is being categorically rejected under the portions of the veterans court opinion i pointed you to is with respect to actually view said causation now the conundrum that leaves the your proposition that any kind of well my submission is that mr roughened did testify in person at the board hearing in two thousand and twelve that he was exposed continuously to the lark's the lighter and resupply cargo vehicles that the noise he experienced problems hearing while in service it was observed by others with whom he served and dr de bose report which is found a doctor at page one hundred nine of the appendix says he was exposed to high intensity noise levels and this could implicate that military service was at least as likely as not a contributing factor to his hearing loss when you put that together with the i o m opinion at page two zero four which says that veterans may not oh absolutely but it's not just me you don't have to take my word for it it's the c i a b c now in two thousand and sixteen the c v a b c has three different times sent back decisions because the examiners relied only on page forty seven of o m which is skeptical of delayed onset and didn't look at page two hundred four which is favorable to veterans and saying that in service acoustical trauma can lead to exacerbation in later on and the veteran wouldn't even know that that's the problem we have an early treatment by the examiners of the i o m opinion which was one note only delayed here onset is not medically supported and the c a b c has now held in the subsequent intervening years i would hope it would not be and the reason why is because i don't think the c a b c or the examiners ever set out to say i am now about to commit a legal impropriety i am now about to prove effect presumption against the veteran but make no mistake if you look at the audio of audiologists report at appendix one twenty two combine that with the veterans court opinion you are in fact getting a presumption that this i o m opinion for closes delayed onset when you put it together with normal audio metric findings i appreciate judge anytime we talk about evidentiary penalties it starts to sound facty i accept that you would reacting against that but that doesn't change the legal complection of what's happening which is evidentiary penalties and non rebuttable presumption zz while they sound in fact the amount to a legal hurdle that is not acceptable when put together with the veteran's claims of such an act and the subsequent reading regulations i see that my time is way over i really do appreciate your time on behalf of mr ruff says this is important thank