supplement my brief a little bit that there was a minute form the court that there was a recent case from this who worked that come out after the briefing was done was no separate underlying conditions and just like in this case both the board in the court of appeals of veterans finds hailed well she doesn't have a disability as a matter of law and what the court  and we also think that on the on on the merits of the case on the merits of the case the saunders case haled that the definition of of disability does not require a diagnosis instead what they said what was necessary was was to demonstrate what they said the focus on the thirty eight u s c eleven fifty five was the focus was on loss of earning capacity and that's what the purpose of the veteran's law of the veterans compensation statutes of designed to compensate the veteran for in this case it is undisputed from the medical evidence and also from the from the findings of the court the board in of the court of appeals veterans claims that mr pitt pages chronic fatigue and weaknesses anough to prevent him from working and that's an undisputed fact so what we think is that in light of the of the specifically in light of the songs case is that the board and  know what's the word in the court of appeals of veterans claims actually get decide which is that mr page doesn't have a separate compensable disability but otherwise he would meet the requirements and if he and if saunders court of appeals of veterans plaintiffs in the board construed the claim solely in the context of whether or not that the mr page a chronic fatigue syndrome which the medical examiner found that he did not have chronic fatigue syndrome but instead court that that that the regional office just very recently did she shoot a rating decision keeping it at one hundred percent of course that would not be in the record that was maybe decided a couple weeks ago from the regional office so i guess just  get to the point what's the gripe here i mean if everything until or unless your client disability rating is east you've got attendance and special monthly compensation issues that the more disability that you have the more the more you could use that as a step higher for us for special monthly compensation purposes under a so what seeking in our case or well what you know what i'm seeking well i'm seeking essentially that i believe that the that the i believe that the fatigue and weakness is not contemplated within the ratings for that and that the law then requires you to give you know the highest ratings possible and we know in one hundred percent well well well like i said your honor the more disability that you end up that you have the more you can use those disability a stepping stone for higher levels of special monthly compensation so that does affect so that could affect the fatigue syndrome that's correct and then the briefing in this case to the oregon veterans court came to be talking about if it t severe fatigue which was a secondary condition due to all the chemotherapy due to the service connected lung cancer that's correct right and then but then the lung cancer service connected disability rating has been at one hundred percent that's correct and it although there were proposals to move it down off of one hundred percent it's always been it's been brought up to one hundred percent and now you're telling me that the v a has confirmed it's going to keep it at one hundred percent that's correct that's correct very said yes they just from  decided that in the lab and so you wanted a serious that the v a had not properly given you and so i guess we were wondering and waiting to see whether in fact you were going to get that here but it turns out that the a chose not to hold a hearing because it chose to give mr page everything that he requested which is one hundred percent on his lung cancer that's correct his lung cancer yes yes and so now you're asking for a diagnostic code or something for something that is related to fatigue that is not chronic fatigue syndrome nor something that is connected to treatment that was due to the service they would have to use in this particular case that under under the rating schedule for residuals of lung cancer mr pate had required outpatient oxygen therapy and so wonder if the rating schedule for residuals of lung cancer that it would entitle one hundred percent rating always been present in the medical exams and a part of the ratings that are attached to the lung cancer that's part of the disability from the treatment is always in fact stuff is covered in the hundred possibly thirty not that one hundred the issue here and the record here points ought exclusively to factual issues and examinations and how this was rated by the doctors who examined him and taking those examinations of the signing the assigning a rating and that's what happened here he did not present with chronic fatigue syndrome the fatigue was accounted for and yes just one of his cancer and he's receiving everything that he can receive right now and if that changes as i mentioned at the outset with us with the processes that are available to him the venue for dealing with that is through those processes you can challenge a rating if the cheek remains but he gets better on the lung cancer it's into these i've spent some time thinking about it i think it's there is a movement some potentially even a brightness issue because if there's a change right in his the way his condition is presenting itself in terms of the cancer and  act i want to correct first of all is under four point nine seven i think it's four point nine seven which is the how do you rate residual lung cancer doesn't talk about fatigue or weakness holic all it does is it is it measures your your lung capacity and then the print on the percentage that they have and that's where the basis of your rating or unless you have you can be good at one hundred percent if you have pulmonary hypertension core palma now which is kind of a hard issue or a or you know or outpatient therapy but it really doesn't talk about the examinations where they talk about fatigue and weakness were not examinations pursuant to a reevaluation of for the lung cancer but were instead conducted pursuant to the claim that we found