we have four arguments today the first case is number two thousand and nine seven zero zero six seven helen tonio against the department of veterans affairs specifically the duty for v a to provide free medical examination to a veteran or to assist the development of his claim recently this court issued its decision waters versus an seche and sure no doubt quite familiar with significantly different from this case this case is distinguished by the fact that that mr cullen tonio entire service medical records are lost and presumed destroyed there is no evidence of his injuries in service to his back other than his own late testimony was lonely statements the other distinction between this case and waters is that unlike waters richard cohen tonio is not simply alleging that his disability related to service is not alleging that he has a medical next and that he's giving he's simply stating that in his evidence or his statements that his back disability which started in service has never been cured late testimony should be sufficient under the law to indicate that a disability may be associated with a disability incurred in service the veteran score noticed and acknowledged that the board never applied any standard to the question of whether or not mr cantone was entitle to an examination it didn't and didn't analyze mr continuously statements and in its decision it clearly said here the board decision pertains no discussion relating to the  i guess can we go back to waters so could you please repeat for me the necessary or at least apple pie what what the distinction is between this case and that what closure and i know they're the symptomology was far different from what he experienced here there's more direct at least we're talking back injuries back problem is that enough in waters the distinction in the waters is it waters offered his own disability is related to service because that's one opinion he's saying my back disability is the same disability that i had in service it was never cured and on page twenty three of the records he's saying i had a back injury in service and a number of little so aren't you asking us them to establish a person a will at least with respect to current disability that arguably in the same box as a disability experienced during service therefore has to follow is that mr colon tony was saying that his back disability has considered consistently persisted throughout the entire his entire life ever since service they have to analyze that lay over to serve  determine whether or not that evidence may indicate that his current disability is related to his disability and service at the difficulty you have on the facts of this case at least and amongst various things of the court of federal claims said they also pointed out to the fact that you had isolated treatments after subsequent injuries in the following five years underscored the intermittent rather than continuity of symptomology so they kind of did address the argument you're making that maybe in the absence of these intervening the then it would have been sufficient for him to just point to this and then point to that but didn't they kind of to saif that what makes this different from your hypothetical case is that there were these intervening that in a sense yes i would agree with you but i point out that the board never made any findings of fact regarding the credibility or analysis of mr cotton you know statements this is a pellet court when the appellate court substitutes its findings of fact for those of the board was supposed to make when it clearly says the board never made those findings there there is certainly a problem there would be difference if we had this is known statements he's a world war two veteran and the only evidence of an injury and service is his own statement could he get a quad reading evidence from somebody else in his unit i suppose so i suppose you could try to try to do that but i don't believe that was the issue which the border or the court found lacking in this case so they weren't disputing never they accepted as true his assertions with respect to his experiences during their correct i believe so what is it of course  know we are not allowed to get into factual disputes but what is it that you think was the legal error that the board made in this case or if you don't think the board made a legal there what legal errors made by the co sufficient to establish that this current back disability is related to service bus meeting the low threshold for examination well are you when you say not didn't provide reasons and there is a disk discussion in the board's opinion  by a conclusion that the board reaches that this is insufficient it sounds to me as if would saying that they didn't really have a sufficient discussion but you're really saying is their discussion should have led them to reach the opposite conclusion from the one they reached and that sounds very factual but first the board never analyzed the lay evidence and the veteran's court acknowledges that on page four of tonio as a titled an examination including the statute in determining whether or not applying facts lot of facts whether or not mr cantone was in time of the assistance from the secretary the legal so then let me see if i can if i understand what you're saying is even though the board did discuss service connection and their perceived insufficiency of the evidence for service connection they skipped over the step required by the by the new statute for an opinion or or medical examination which is a lower standard than the the ultimate determination of are i exactly i enjoy exactly if the standard for entitlement to service action for disability is a different set of criteria than the standard the criteria for v a to provide systems like examination to help a person develop their claim a claim and to develop their claim for benefits that was the entire purpose of the b c after this court's decision and more  that for the veterans court decision morton was a hell veteran shouldn't go pro providing their own medical opinions the v a is supposed to assist veterans in developing their claim and the threshold for getting an examination is a low threshold it shouldn't be a hard bar which provides all that or to get examinations but only keeps out those claims which are just spear are just completely for with us from receiving that type of assistance strange language competent evidence that the claim that has a current disability but be the says indicates that the disability may be associated with the claimants service but what do you do you think indicates maybe maybe that's the point you were just making and that that it's a low threshold but what how would you articulate the threshold indicates nabi associated lay evidence should suffice to indicate may indicate that a disability curtis bowie may be associated with the service well i think it's and i think we can all agree that that that you don't need quote competent evidence at least it's not an absolute mandatory requirement in order to satisfy be that that was the point which you prevailed in waters as i read that letter but at passing that what does indicates that nay be associated with say with respect to assessing the force of the lay evidence that may be before the boy that's the question exactly before the court that's that's right but what's your answer to my answer to that is that simply lay evidence of what has happened veterans only have and is not a conclusory statement live and saying my back has never been the same since i entered it service is sufficient to meet that low threshold if it's not been essentially morton has been opinion as requiring proof of again competent evidence presumably medically competent evidence yes on this is somewhat ambiguous it seems to me on page five page five for obtaining an examination that's the standard for obtaining compensation for service connection is a medical nexus requirement may indicate that an injury is where the service is much lower may not need competent evidence but in this instance he needed more than simply is late opinion i mean that doesn't that look like a qualification of the broad broader sounding sentence that you read i'm particularly looking at the quote from mclendon that the indicate may be associated the types of evidence include but are not limited to medical evidence  then the statement that the appellant's statements do not speak to matters that are capable of lay observation suggesting that if it were something capable of lay observation that would be fine but that does suggest that if first instance that that mr colton statements are sort of any ology opinions rather than simply statements what relief would you think would be the appropriate relief in this case if we conclude that there is error here that we can review mr cole tony we would ask the court  e and remember this matter with instructions for the court the veterans court to vacate and remit down to the board to apply the correct standard of law to the facts because although that clearly was inadequate reasons or bases but the standard which mr cohen tonio is seeking from this case was not applied either would we need to require also a medical examination of that low no your honor because i don't think that i believe that the applied a fifty want to three a d two to the facts of his case and the term and that the particular evidence he offered and not meet the standard for opinion a medical exam or whether the veterans court interpreted the statute to say that lay evidence is never enough to meet the standard to obtain a medical exam this is our job to try to decide whether what the court has done th appeals for veterans claims falls within our jurisdiction near your brief seems to suggest that the court of appeals for veterans claims has a legal duty to make that job easier for us by saying what we're doing is factual or application of lot of fact or straight law i don't it seems kind of curious to send a case back to the board for the board to pigeonhole its decision in one or or as an interpretation or an application and has done so in many cases but there has to be some indication in the veterans court decision as to which it might be what this court has held where there is now in the case and jane cases where there is no indication as to which it is and when there is a question as to this court's jurisdiction depending on clarifying i guess i'm not clear on what we're talking here when you say which it is is your reference to which meaning  versus that question versus a legal question or which it is in terms of what standard they actually applied in reaching the result in this case whether it's a pure legal question or an application of logic fact because  medical nexus but again it's not clear from that statement whether the veterans court is saying lay testimony is not good enough ever or you know if you remove a climbing wall in the following paragraph they could be saying that events is just not good enough in this particular case so this this this opinion is more ambiguous on the issue of the court's jurisdiction then the typical opinion it doesn't give any indication as to which which it's doing here and that that's why we think that every man is necessary for clarification if the court decides to interpret the opinion without remaining for clarification however we would agree that if it's a legal interpretation then it's the wrong interpretation to the extent that the veterans court is saying that lay evidence has always required that holding would be and consistent with several of this court cases so just that we did it the same conclusion as mr raven positive not exactly because while we agree that they if that's in fact the standard they have find that it's the wrong standard we don't agree with mr cole antonio that basically any allegation of a connection between service and current disability is good enough or if there are requirements within the law you don't have to decide that broad legal question the question is on the facts of this case is what do we decide what's what why would we if we agreed with him that these statements of law are wrong and that we need to send it back to whether or not a medical exam was required not exactly what this court could do is send it back to the veterans court the way this question arose is that the veterans court first determine that the board made a reason or bas not discussing whether a medical exam was required and then the court found that the error was non prejudicial this court cannot reveal a finding by the veterans court as to whether an error was prejudicial are not so what this court c that we do have jurisdiction and we decide that the court applied the wrong standard it would be the court's applying the wrong standard as part of its harmless error analysis with respect to the legal error committed both of you agree by the board or at least you agree that that the question of whether the board committed a legal error is not something that's before us at present that's right our the difference between us i believe is the standard that should be apply that this court if it decides to remain and directs the veterans court to consider and that in waters this court specifically rejected the idea that an allocation a no is an allegation is good enough to meet the standard for obtaining a medical exam the court also said in waters that competent evidence is perhaps too high a standard but mr call antonio agree at page six of their reply brief that there is some standard that the evidence the board can weigh the evidence and determine whether it's probably evidence whether it has any probative value and i think that's because as you know i injured my leg when i was in the military so it's not obvious to anyone that there's a nexus in this case on the other hand it's the same injury i mean he had a back injury in service and now he's complaining of a disability that's in the ballpark of back problems isn't it is there a line to be drawn between those types of those two types of cases i don't believe there is a bright line where this court could say that if it's the same type of injury then it meets the standard if it's sort of a different type of andrea's we had it on our side it wouldn't meet this and that not necessarily where the line fall that's more of a fact by act but they were not to be a lesser burden on the veteran i mean if i'm saying i have headaches now because i hurt my leg four years ago i think one could reasonably say i've got t give them something more whereas i heard my bath in service and now my baptist is still killing me i mean what more can i say about that but certainly that may be close to the stand but if you know we do have  he also admitted in his later statements that not only did he have back into use during service but he also had back injuries after service so it still would involve a way of his evidence maybe it's a little bit closer than  mr waters mr waters was an allegation that his hypertension was related to schizophrenia which is a little more difficult for a lay person to determine that but if we're talking about weighing the evidence then doesn't that have to be should we sent it to the board  right only because of the way it came before the veterans court and because it was in the context of the veterans court prejudicial air analysis would have to go back to the veterans are first in order to make that analysis again now likely they would have to send it back to the board and if this court tells them how to play out and has to be considered well then the board would have to make the weighing of the evidence in the first place in order to determine whether the la the legal standard that is entailed by the language indicates that the disability or symptoms may be clinton's but that's a level of proof that we don't typically deal with how would you characterize that legal test it's difficult to characterize it and anyway beyond that the language of the statute itself  example might be the example in the legislative history where you have a paratrooper in service and there are records that he did parachute jumps who later has a record of current me problems and he has evidence that there is a connection between his parachute jumps during service and the later name problem did they were today articulate what kind of evidence that would be and certainly v a would likely take into account his statements and accept his statements that he had made the fifty johns that would be the difference with the service medical records but there could still be a question  similar to this case as to whether the knee and injury is or similar and type or similar type of situation as whatever his current need disability would be so that certainly could be a question him saying  what you're saying that sounds to me like you're edging up at least on saying that as long as the lead a statement is not inconsistent with possible medical  it's there's no seemingly no basis for assuming a possible connection unless there's further evidence to that effect but in a case such as the paratrooper case unless there's a doctor that is prepared to say none of that particular knee ailment he has can only come from arthritis which is not the product of jumps it has nothing to do with whether you've had jumps or not trauma of any sort i mean if is is that what we should be looking at is the legal test to say that if that as long as the latest statement is plausible on its face it isn't rebutted by some evidence to the reasonable possibility if you read that together if you can take the lay testimony to indicate a reasonable possibility of a connection then that that could be in any other well the other possibility or at least i guess i'm trying to think of the kind of evidence way testimony that could be relevant to this question and i guess it could be as happened in this case some explanation by that written as to and what's happened over the twenty year period in other words and i could go from and i've never seen a doctor in this just suddenly recurred twenty years later versus i've had this same problem continuously i mean the other thing they're interv back to the point of entrance claims to establish in the first instance whether it was prejudicial what's your problem with following that model my only concern we are apart by a very small amount  it's it's it's a big distinction in that sending it back to the veterans court the veterans court is has already found that the board's reasons or bases are inadequate and it's analysis based on its interpretation of law which we both agree is an incorrect to turpin target tension of law but we don't know with getting by being correct interpretation of the law that would have some other bases for determining whether or not it was should say ok we what was on page five of our first opinion was at minimum messy and perhaps even wrong nonetheless applying the exact it but you would have grounds for legal complaint absolutely