this case arose because it is unusual from the type of case that this court normally receives this was not an original adjudication this was not a case in which mr robinson made a claim and the a went through the duty to assess them in order to arrive at a decision as to whether or not he should or should not be awarded benefits this happened as a result of what they call a nemer review name or comes from a class action lawsuit in which the v a conceded confest settle the case and part of that settlement was that they would periodically do reviews when additional conditions were added to the list of diseases for the statutory presumption and so what happened was is that the v a went and looked back at what had taken place in this robinson's case because he had in fact made a prior application and had been denied for agent orange benefits which then triggered the name review which then required a decision and it is in that context in which it is in the lookback that we have the extraordinary circumstances which took place in this case which were that a v a cardiologist who was treating mr robinson ordered a specific test that went determine whether or not  his disability had increased in some areas and for reasons that are not explained by the record fourteen months went by before that examination took place when they did the name review they found that the initial degree of severity should be thirty percent based upon the records and that the wreck the condition should be increased from the date of the test results that came back showing the increase angioplasty in two thousand and three i think it just kind of confused in the because i thought the results of the test were to show that he had coronary artery disease and so i didn't understand why this is referring to him in the record they changed the effective date back to the date of that search because the name of the rules require which is the first regulation that the court relied upon is to give the benefit back to the date in which the medical records show that it arose the original date selected i believe was two thousand and five was an incorrect date because they didn't look all the way back in and that has been eventually corrected so the effective date is back to two thousand and three what we're dealing with here is the original adjudication that assigned a thirty percent rating and then a sixty percent rating based upon the date of that test result that two thousand and three that was for the thirty percent they eventually gave that excuse me they were required to give him one hundred percent because of the surgery and then i believe they reduced it down to thirty after the surgery so can you give me the context of exactly what the about what this case is about is there is a fourteen month time period in the record prior to the adjudication in which a v a cardiologist ordered tests because the patient exhibited symptoms that he thought warranted further testing those tests when administered fourteen months later verify that he met the qualifications for the sixty percent rate  this the question of fact as to whether the board was correct that there was no proof as of february of zero six that he had this condition the fact th at the evidence as of the particular day in order to ride the board in the course what you say is correct the application in this case is incorrect application of law the application of that bar to consideration in this case is incorrect because the veterans court made three legal or they mistakenly concluded that the provisions of three point eight one six c apply and they do not that but prince court said that the principles of equity do not apply and they do and that section thirty eight c f r seventeen point three three eight two exists independently of the veterans benefits scheme and it has no application to the assignment of an effective date under fifty one twenty one student fifty one ten the for fifty one ten b three specifically says your honor that and the fact of date is to be assigned in accordance with the facts found out the question in this case it is are these the facts found that there was a fourteen bill month delay in awarding the sixty percent rating because the v a did not follow seventeen point three three eight two and promptly provide the medical test that had been ordered seventeen point three three is a very general basic provision that doesn't deal with determining effect in plates with respect your honor i believe that that is the same error that the veterans court made i believe you are incorrect because the regulations can be the statute congress specifically said that you assign the effective date in accordance with the facts found out so if you do not take consideration the provisions of this statute in which congress could be with the v a imposed upon itself a burden to probably provide medical treatment and medical to us then you are ignoring congress mandate to consider the facts and then that's where the equity portion of this comes in the provision to potential application here this court this week two zero wednesday i'm sorry i don't for the relief that was sought there however the this court at ages fifteen and sixteen of the slip opinion specifically says that  there are circumstances it's said scuse me it is clear that the better and court has authority to grant certain forms of non substantive equitable relief required to enable the court to carry out its statutory grant of jurisdiction we believe that that is a political in this case navios we didn't have the benefit of that case law the time which we wrote the briefs in this case but what that decision sends is that the veterans function under eight one six is to ensure that the effective date goes back as far as possible only the effective date for the grant of benefits and in this case it didn't go all the way back and was eventually correctly applied to take the effective date back to two thousand and three the question here has to do with the stage raid in which from the period of i think it's two thousand and three to two thousand and six that there clerks make that determination of i'm sorry yes i am i overstated that's what mr robinson is looking for ultimately in the outcome for us from this panel mr robinson is only looking at i believe can only look for believe that that's uncontested in this matter yes and if it is in fact uncontested then the provisions of seventeen point three three should be taken into consideration as part of the facts found out because if there was an unreasonable delay in providing this test and the results of the test obviously determined that he was entitled to the sixty percent rating he should be entitled based upon the facts found being that he wasn't given that he has for  fourteen months should at least require consideration under fifty one ten b three for the facts found under both principles of equity and under the provisions of seventeen point three three that's and i couldn't do it if we look back at february twenty third two thousand and six that's when he went to the cardiologist for the first time he said that he was in good health but he experienced slight chest pains or twinge is when he went back in november of two but i understand but i think if we're talking about the v a s duty where it's obligation to assist veteran and assuming or creating evidence for his or her claim we have to look back and remember that in two thousand and ali but i think you are you are saying that you know the central issue in this case was this fourteen months the way i see the issue of a slight bit differently the central issue in this case is mr robinson is seeking a higher disability rating what he would have the court do is essentially create a policy guideline wherein whenever a doctor thinks that a test or diagnostic examination of some sort is necessary that that would start the clock running and at that point within thirty days at that point this particular veteran would be entitled to a higher disability rating and that's simply outside the regulations the statute that govern the claims process in the claims  seventeen point three three you know based on my research that no no claimant is ever utilized that particular regulation to support the higher disability rating in fact if we look at the congressional history of the patients bill of rights it makes clear that these are guidelines that were not meant to supplant federal regulations or statutes that govern the claims process there were similar he's relying a lot to get a higher rating it's connection because he was in the i'm a class member five one one zero though kicks in and stablish is what his exact rating would be for the relevant time period so i don't think we can look at them separately i certainly don't think that the veterans court was mistaken in relying o attempts to try and receive this e c g our understanding is once he saw the doctor again in november two thousand and six the doctor noted that he was still eating to have a c c g before and was found he performed and it was at that point that he went from ten percent i we look at that case and we read it very differently i read that cases actually supporting our position because they're the federal circuit it's a it's quick to say the veterans court cannot invoke equity there has to be medical evidence that would substantiate the disability rating and here they were simply not and that's the reason why you know i don't think the veterans court i think there is was correct in saying they didn't have the equitable power to give mr robinson what he wanted and i think at the end of the the court this court case law has been established for some time that when a veteran presents an issue and the veterans court decides to ignore that issue that that does not in any way diminish this mister robinson in his case before the veterans court presented the question of law as to whether or not three point one six control the disposition of this case three point eight one six three point eight one six does not control the disposition of this case it only controls the date to begin the a war which they got wrong in the first instant and correctly took it back to two thousand and three secondly he presented the question of equity the court said no so they made a determination your honor they made a decision that they did not have equity this court's decision and burress calls that into question at the very least says that it does not exclude equity and all circumstances and specifically said that it applies in terms of equitable tolling and even applies in terms of equitable stoppel which implicitly overrules a presidential decision of the bedrooms court that says equitable a stoppel does not apply thirdly that mr robinson presented below the question of whether or not he was not entitle to the benefit of proper treatment under the provisions of seventeen three through the veterans court said he was not that is a legal determination so there were three specific legal determinations made by the veterans court separate and apart from the fact that they found that there was no evidence earlier testing and that there was no evidence on his side with your honor to be polite that argument is bogus there is no basis for that in the law there is no burden on the veteran he does not control scheduling there is nothing in the evidence that suggests that he did not simply wait until the v a told him to show up for his appointment and when the v a told him to show up for his appointment he showed up for his appointment and that appointment verify that his disability should have been rated at sixty percent the overarching question here is the nature of this system this is either a veteran friendly system or it's the system that the government just told you about in which we shift the burden to the veteran to prove something mr robinson should not have the burden to show that he didn't cause this delay the delay has not been disputed the delay took place here that implicates the provisions of seven hundred three three and the government is completely wrong when it says that the provisions of thirty eight u s c fifty one and apply to rating they do not apply to rape rating is applied based upon the diagnostic and that is in part three of the code of federal regulations the statute if they want and pretend or pertains only to the assignment of the effective date and it uses the congressional language that the effective date shall be determined based upon the facts about the decision of the veterans court precluded consideration of the facts as they existed in the record and the facts as they existed in the record were that the v a without explanation the laid getting this test for fourteen months that