may please of course practically speaking there is only one question of this particular appeal does the court or the veterans court have jurisdiction or lack of jurisdiction over the july two thousand and sixteen four decision in the companion case as goes the court's decision in that case so goes the court's decision in this case in any scenario in answering that question this court need not reach the merits to decide whether the veterans court used the correct legal standard in deciding a writ of prohibition in the first scenario the court could say and the companion case that the better it's court did not have jurisdiction over the july two thousand there is one scenario where the court would need to consider a writ of prohibition and it's not the merits that would be necessary it's whether or not the true circumstances have changed because the board went ahead and developed this case on ri man while we were arguing for jurisdiction of the veterans court they have essentially usurped the court's jurisdiction that is not an issue if the court says there's no jurisdiction on the compelling case because disagree respectfully your honor the issue that was developed and we would not have probably appealed to this court on this prohibition issue had the february two thousand and seventeen supplemental statement a case that was issued on remand addressed the actual issue that was the first round or actually the second round before the board in the two thousand and fourteen decision that the meaning of provokes write correct and that and then when they do the subsequent removed which i guess is that worth  the other's fishnet opinion addressed several different theories of of service connection of the cause of death it said one theory was that it materially contributed that the service connected shoulder injury materially contributed to the cause of death from  because it prevented the ability to get the full benefit of the lymphoma treatments and as a result he died from a lymphoma that he probably would have been cured that was one theory that dr schmidt a pint about she also a pint that there was a direct connection to the shoulder injury and that she argued that the or she of hind that the shoulder injury led to the lymphoma as a matter of medical causation or medical nexus and those are two separate issues  everything's over are you better off would you have been better off if if i'm understanding correctly judge you're saying i don't understand what with this reserve prohibition what the go would have been had it not been real and the rid of prohibition was was meant to protect the issue that we were appealing to the court we see them as two separate issues we see the issue being remanded as this question of the direct link between lymphoma and military service that was the remanded issue we see the issue that was denied by the board a naturalized two thousand and sixteen decision as a denial to you don't need to develop that first remand  issue if in fact your unless you're denying the other issue which is the one that dr schmidt specifically a pint about saying that the treatment from lymphoma was not he was not able to get the full benefit of the treatment from context of the board remember those saying to address the question of direct service connection the mention of dr schmidt's or reviewing dr schmidt's opinion necessarily becomes related to that and so she rendered several opinions on several issues and if the board had come down and said companion case your honor the fundamental flaw in that decision on that piece of the companion case put it to rest my statement is that not correct if in fact the  to have both theories considered and there's nothing wrong with the decision the veterans yes we would still argue that there is something wrong with that if you can just because of the fact that we put in and into evidence an opinion which addresses a issue which the board should decide whether or not to accept that opinion under fifty one twenty five and remanding it to on the issues you know we don't hear restriction to refute something which is not on this court always has jurisdiction to review a decision on the jurisdiction by the veterans court and we believe that the veterans court erred in saying that they do not have jurisdiction over a final decision seventy two fifty two is clear in talking about jurisdiction extends to decisions and the issue of finality only comes into play when we're talking about the timeline under seventy two sixty six that's the allowed the appeal to proceed on the board's failure to address the medical opinion that we presented we presented a competent credible medical opinion establishing that considering the board doesn't have the authority to go back and get evidence to corroborate a medical opinion in fact fifty one twenty five says that unless there is some basis for finding it lacks competence or credibility which they never articulated any basis that they have the discretion to accept that and we believe they should and that's the issue that we are appealing in the substance of the companion case when we get to the merits of the companion case for appealing that the court should have entertained whether or not it was proper to remand or proper to address the theory that m poole raised which is the service connection of the i'm get myself with you is now little bit but that's the portion that we wanted the court to consider was whether or not the board acted properly and remanding to consider its theory while there is evidence of a theory that could establish service connection and the claim right there and the board made no comment on the credibility or competency of that opinion and if that is your position of the board made a decision on your theory of the case yes that is our opinion we are is that decision there are no words in that particular july two thousand and sixteen that's essentially that's how the lord decides things yes seventy one zero forty provides three elements that shall be in a board decision adequate reasons and bases is seventy one of forty one and seventy one of forty three says that there must be a appropriate grant of appropriate relief or denial of relief now when the court looks at cases where the board has not put in that first element that reasons or bases the court has never to my knowledge come back and said we don't have jurisdiction because the board didn't address reasons and bases they say we have jurisdiction but they eventually remanded back so that they can get a clear decision to review even if there wasn't you know a full some explication of their reasoning there had been a decision and there were is the decision articulated in the boards and the decision in the board opinion by making a decision to remain for a legal theory that does not need to be developed unless it is denying the other theory that's the decision that doesn't mean they implicitly deny your theory i'm saying that they did not come out and say we are denying i'm not saying they implicitly deny that i'm saying they did not explicitly and i think there's a subtle difference there because i think that it goes to the heart of the court's jurisdiction under seventy two fifty two the idea was to take the  secretary out of the splendid isolation from judicial review and to allow the court to review decisions of the board and the board can up you say that in light of the fact that in the or they made it very clear that in in the r that there was no specific theory identified or set forth they simply requested that dr schmidt's opinion be reviewed completely  and on on whatever issue happens to be present in two thousand and nine the board issued a decision that the court came back in a memorandum decision and said you didn't address the issue of thirteen ten t section thirteen ten d i see the silence by the board in that case did not deprive the court of jurisdiction in fact it gave jurisdiction and was symbolic of error in two thousand and fourteen when the board issued a decision that didn't address the  adequacy of the medical opinion as it was supposed to under the terms of its own re man the court looked that and didn't say that this is the we like jurisdiction because the court was silent out of the board was silent on this we have jurisdiction in the boards required to address it and we say the same thing here is that even though the board did not come out and say we are denying this pools legal theory they effect of lee did just that and that's what she's appealing the board cannot hide and of a judicial review by choosing not to express a decision in the same way can't of a judicial review by choosing not to express reasons and bases under seventy one of forty one what if you will have judicial review ultimately when the case is fully decided which i understand it  and so that it's a chance to review all of these issues including your theory and whatever other theories are contained in that decision to that extent it's a question of just issue building and that's what we're saying is that there's a fine difference if we go back and look at all these decisions and i can get into this more in the companion case but if we look at all these decisions whether it's ledford whether it's howard whether it's kirkpatrick whether it's tyra's the driving concern underlying all those are issues that are so it seems to me you're crazy nightmare or veterans and their counsel trying to figure out where there's an implicit than iowa claim that they have to appeal immediately or they can where as if you look for explicit language at least somebody can tell that there's been a decision on the klein that they have an obligation and two things to that judge is that the first thing is that the board can choose what it writes and doesn't write and so saying requiring it to put into writing a decision granting or denying relief it can have a judicial review by not doing that but the second piece of that is we don't think that we're creating confusion for veterans or difficulty for veterans what we think we're doing in this argument is we are opening up the opportunity of addressing under time if there's a final decision with respect to a claim you have to appeal it right there you know we so under your theory in this case where that a veteran being faced with a decision from the board that may or may not be clear and if it's clear then this isn't an issue tyreese controls we know what a final decision is based on tyrus but if it's not clear the veteran is in the conundrum that judge newman talked about the tiris the sat and  s resolved by saying that seventy two fifty two covers all decisions of the board and let the court sort out the justiciable is it right is it moot has a remedy been exhausted all of those different questions that the veterans court is in a great position of a far better medical evidence to confirm surface connection and take the chance that as a final decision which on facts which we can't review the veterans court would decide against good morning your honour's may please the court on this question of the right of probation the only question a legal question is whether the court was correct to deny that the court was for the reasons that this panel has i alternate way of obtaining relief and here there is the avenue of direct appeal that this pool can always avail herself of when if for whatever reason her claim is denied she can appeal that as all the veterans cases that come before this court do typically in the in that order she can appeal to veterans court and then up to this court so there's there's no there's no reason to issue the writ because it basically they're seeking a substitute for are our position is that there's only there may be different theories but there's only one question that was remanded for additional and there's been no decision by the score on either of those computers the shoulder or the direct connection that's correct yes so both of those theories will be open in the lead or he'll write yes well the last remember though that was a joint remember the parties agreed that either the board didn't properly consider theirs the board improperly consider whether  at him and they made that the board's duty here is to develop evidence to make an informed medical opinion and that's what the board was doing and it's trying to sort of shortcut that process and stop it stop it only after this  her favorable evidence which miss paul thinks is sufficient but the more we don't have a decision from the board whether it's a there's a not and the board is in a better position to obtain additional evidence or make a decision and then have that be appealed in the you're on earth in this case the agency is doing what its statutorily obligated to you to evaluate the veterans claim and several times the case has been remanded because the board improperly sixteen after eight years of up and down rebounds it's the claim goes that it's miss poor to the extent that she prevails will receive dependency indemnity compensation going back to two thousand and four the date of her husband's death so the the process is sometimes longer than ideal but as evident here you know the additional time allowed this ball to fly and the medical opinion that is that she believes is favorable and she was able to put that in two thousand and sixteen the board's continuing to develop that because medical opinion that she provided does doesn't address it says that it made it home may have been caused by the shoulder injury but it's not clear and so the board under its duty to develop and inform to make an informed decision is continuing to develop that i  believe these are when they're reminded they are expedited so bored what is the status of the the board has obtained has issued i believe a supplemental statement of the case and has issued a ninety  as opposed to remand it both issues and if you look at appendix sixty at the board decision at the very top it's talking about the two thousand and twelve opinion that the court has already found inadequate talks about it addressing three theories the next paragraph goes into saying it's however the joint motion they only found it inadequate as to that one query so the board identified three theories the re man said that it was inadequate as to the other and then it proceeded to remain and to develop that theory that was inadequate or read of that is a clear signal to mr pool that they are denying her legal theory because they're developing another one that they don't need to develop unless they have already decided without writing it down possibly that this issue has no merit otherwise they would not be developing extraneous evidence on an issue it's exactly like tire roost in the sense everything else is the same entire ruse except we don't have that clear definitive denial in tyreese you have presented service connection of a long and direct service connection of a long disorder and the board denied clearly in definitively denied direct service connection of a long and remained it for presumptive if the facts untie research change and the board just remands for presumptive this is the issue is still there is  it is that denial of the direct service connection even though it's silent i suppose is the word even though the board did not explicitly say what it was supposed to say under d three seventy one of forty three then the veteran should still have had the opportunity to appeal that i think that's what tyra's is saying except that with a clear and definitive finality it gives the one hundred twenty day limit under seventy two sixty six the other thing i would like to point out in regards to the ninety day letter is that it was issued may of two thousand sixteen and we respond to that by providing the evidence that we've provided in this case and in february two thousand and seventeen there was a supplemental statement the case and i'm not aware of any further action by the board on this case at this time