a prior decision on the grounds a clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision the veterans court relied upon  because those decisions were entirely dependent upon the one nine hundred fifty three decision those decisions could not have been made in the manner in which they were made but for the one hundred fifty three was a maybe a perfectly good argument case the nine hundred fifty three decision it automatically nala pfizer any decisions that were made there after by the v a that were dependent upon the decision that was found to have contained clear and unmistakable error in this case the board in two thousand and six found that there was a clear and unmistakable error in the one nine hundred fifty three decision which had on lawfully terminated mr pearl's total rating based upon that any other decision that happened thereafter was dependent but let me ask you this question once once we go back and the fifty three rating was was changed to one hundred percent correct so ammunition we have a new rating what type of  required a period of employment of six to three to six months before a total rating could have been reduced but that's precisely the problem in this case is that what happened in one thousand fifty six is the one hundred fifty six decision based upon the provisions of both three point one seven zero zero as well as three point three four three and that evidence must have been of record at the time of the one nine hundred fifty six decision and as well at t and the fifty percent in nineteen sixty six and those could not have been the proper ratings because mr perkel was entitled to a total rating in one thousand nine hundred fifty three and they on lawfully reduced it therefore in one nine hundred fifty six as well as nine hundred sixty six he was entitled to those protections that were afforded by these very specific the a regulations to mean that through your opponent argues that call them all that may be true that the one hundred percent rating apply to fifty three when they made the fifty six and sixty six ratings to go back now the only way that can be changed is with an independent q finding that the law and the regulations don't permit or there's no way by which even if everything we see we have a separate thing you're saying that there's no way to go back and change a fifty six and sixty six ratings without a q finding and that we don't panic you fine in this case for most two years but we do have a q finding in the one nine hundred fifty three decision and that's why this case focuses on the meaning of the phrase about same effect if that phrase is rendered meaningless by the analysis that you have just offered which is the v a s defense then there is simply no way that there is any impetus to the meaning of that phrase it is rendered rendered meaningless i don't understand i mean because you have it well you can make the same argument that it's you're making now as to the effect becomes needs right that i disagree on here because the test under russell is that it is the facts known at the time and the facts known at the time was that the reading decision in one thousand fifty three was whether he should continue to have a seventy percent rate if you're really responding to my question you're saying that we say that that has to be brought as a cue play and that means the statutory provision which relies meaningless i don't see why that's true you could you could make that argument in the q context right if you could your honor however the question becomes what is the intent of congress in creating two statutes it is to correct mistakes what this such a holding as you're suggesting requiring then three new actions triples the burden on the veteran fifty six or in one nine hundred sixty six because they would have had to apply the same protections of three point one seven zero and three point three four three because he would have been rated as one hundred percent and he would have had a protected rating he was entitled to the benefit of that and therefore you increase the burden on the veteran which is contrary to the intent of congress in creating this right to correct mistakes not to correct mistakes over and over again this is like a game of dominoes the first error in fifty three not go over the decision in fifty years it will be i mean but it doesn't need to be obvious on the face of it but that's true i think the rated a total reigning mug but the hundreds you you've got to show that there would have been a different result if the if the fifty six decision for example shows that the the standard was satisfied there was evidence that this was done after the three month period in there was independent evidence and all that maybes of the the v a would conclude that the there was no q here because you haven't shown that that would have been a different result of the error and been  with respect your honor that still imposes the additional burden that is not part of the intent of congress in using the phrase have the same effect as if the decision had been made correctly at the time because if the decision had been made correctly at the time then these other two decisions would not have been made because they would have been required to have applied the one hundred percent protection regulations the problem with bringing haven't shown that applying the hundred percent protection regulation would have led to a different result in fifty six just because you removed the reading reduction fifty three there is an issue here as to whether that would happen or not and that would seem to be something that's normally have to pursue in a few but with due respect your honor we didn't get the benefit of appealing the board's dismiss prince court never reached the question of the merits because the board didn't address the merits that this whole hypothetical discussion about what might or might not have been able to be shown was not reviewed by the veterans court because the board dismissed mr purple's appeal mr purple was denied both that ministre to the peleg review as well as judicial review the veterans court did not review a decision of the board that reviewed the decision of the v a that implemented the v a s decision at the two thousand and six board decision was implemented that was denied him that's what he appealed he had the right to appeal that and the question in this case is whether or not this statute does or does not permit the appeal that was taken there  phone new q clinton with respect to the fifty six and sixty six rating decisions are you going to come in and say you can't do that because you did you tried it once before and underhill your bar for the sixty six it yes because it became a sixty seven board decision and the or will it then explicitly rejected that under hillyard and a two thousand and two or decision what happened was in two thousand and one mr perkel raised the simultaneous q challenges to the fifty three the fifty six and the sixty seven decisions the board rejected the sixty seven decision as not containing q the original office rejected the fifty three and the fifty six which are purple only appealed the fifty three to the board that became the two thousand and six four decision that is the basis of the ultimate q finding the fifty six regional up decision was not appealed but because it did not become a board decision still free to raise it you claim to the fifty six decision let me ask you a question so in fifty nine hundred fifty three usually go back there and saying that the fifty six decision as a matter of law was too because they did not apply the material improvement standard that would be the subject of a separate  claim that's not what we're addressing here and also pretty plain i think that's what the opponent is is is is a little and for a key claim it would have to be shown that will be outcome determinative and that would ultimately be first application of lot of  facts by this court but even if it were to go through the v a there'd still be a question of whether the fifty six decision which was based on separate medical examination and there was a pretty prior period of employment the basis for the fifty three q decision with there was no prior period when what prevents us from finding that as a matter of law the fifty six decision was erroneous due to because the fifty six decision is not being challenged for q in this appeal the fifty six w separate final decision of the regional office was the subject of a q claim that was denied was an appeal to mr pearl now this is particles appeal except explicitly premised upon that not being a huge challenge to the fifty six decision so there that decision is not before this court all this before this court is a claim that the the board's application of the two thousand six q for the one hundred fifty three automatically carries forward to decision until the next final decision of the are up which is exactly what happened here and because what you're saying if i understand correctly is that it's a fifty three decision is way down you can use it to justify the fifty that well first it was a white out it was reversed or revised so it does not mean boy one of the points in the brief is that subsequent decisions are made boy there's no provision for that but yes the fifty six divisions and what's the matter with right but it's gotten in the in the context of a q can challenge it's gone with three decisions gone to the extent of fifty six decision rests on the fifty three decision that was an error and then it becomes a question of whether that here  outcome determinative right yes although i'm not sure the fifty three decision wasn't gone it was simply corrected to have been one hundred percent so it's not dawned on him but it's correct and the fifty six rating though it took it to the next level and that's how this works i mean the ratings are look whether you we do this to the next level so i see two problems here one is that the material improvement is not apply and second when the fifty six rating came out and they reduced it to the next level they reduced it from seventy five percent down to only fifty percent when really we go back and change a scenario as a sta to fire the shooter reduced it from one hundred to seven five and that sets up this domino effect that that your opponent is talking about well that would be the subject of key challenge to the fifty six decision on whether the if they had known going in whether the material improvement would have been met and whether you know you go one level or two that would be enough another subject for q challenge but that's not the subject of the appeal we're looking at the interpretation of the statute and to challenge changes in that particular decision that particular step decision was the rain decision affected one hundred fifty three there was an entirely new rating decision the fact of one hundred fifty six so the nine hundred fifty three decision as you know has been corrected to one hundred percent and i keep it to six decision is a totally separate position and there are only two ways to reopen that under the cook decision or through newer material evidence or through q what could we do in under fifty one o nine  which says that and this goes back the date of the prior to a prior decision i mean doesn't this ask us or instructors to go back and look at the fifty six decision and sixty six decisions and to reconstruct that and look at those decisions  view of the of the fifty three changed no unless there's been a key challenge to the fifty six or the sixty seven decision which there has not been in this  appeal the other urging the statute says to the stand that the fifty six and sixty six or sixty seven decisions rests upon the fifty three rating decision they can no longer rest on that right yet if there were a challenge to the us sorrow and so what you're saying as i understand it is that yes that's it operates to remove the fifty three decision run as though it's never been made but that doesn't necessarily mean fifty six sixty seven would have been a different result if that happened yes but if you're reading and you're reading down to the next level does it's the question of whether you know this would be a jump down of one rating level as opposed to too late reading levels that would be a question you'd raise in a key challenge those later surgeons were not addressing that here subsequent rating decisions which are final decisions the statutes and regulations provide for ways to correct errors and those even errors predicated upon previous errors if if to the extent that the subsequent decisions relied upon them which we don't consider you know take a position on here because those aren't an issue although we know that there were separate medical examinations in the veterans court found that the premise of the appeal was factually incorrect for those reasons but again the mechanism for doing so is three the new material evidence or three key challenge to those particular decisions absent that acute challenge in a key correction to an earlier decision correct the effect of that decision which is the rating period covered from that decision until the next final decision that is what occurred in this case and for those for that reason there was no error on the part of the federal court in affirming the decision of the board i'd like to try to pick up on judge rayna's analysis of the statute in relationship to the notion of attempting to relate a gate the question of q in the fifty six and the sixty six decision the problem with the government's position in viewing this as necessary is not only that the statute requires us to treat it as though it had the same effect it asks you now to say that we're going to hypothetically change the decisions that are being attacked for q because of decisions made in fifty six and sixty six as judge raina correctly points out or for the reduction of a seventy percent rating and the reduction of a fifty percent rate under the government's theory we get to change that decision to the reduction of a one hundred percent rate and with what the government is saying is a unique you claim that you have to show the outcome determine you have to show in the context of a q claim the removing fifty three reasons restoring the hundred percent would have resulted in the change in the fifty six range decision what's strange about that because the case law is as the board found in two thousand and six is when you make this type of procedural error in the reduction of a total rating then the reduction for not using the material improvement criteria makes the decision clearly says that when you do not apply this provision and the government must concede that these protective prisons were not applied in fifty six or in sixty six then those decisions were void  because they didn't start at the correct starting place a one hundred percent rating and afford these regulatory protections and therefore i'd ask this court to reverse the decision of the veterans corps on the basis of the interpretation of the kitchen's case did not involve a situation like this one no it did not not on a secondary question but the question that you're posing to me is the necessity to for the veteran to re meet this standard a second and a third time in the fifty six and sixty six decisions i'm saying that the plain meaning of the statute cannot be read to impose those additional burdens he did it