service connection on grounds not considered by the board and relying on evidence that was not considered by the court one of the main issues this court has to consider in this case is whether the veterans or properly made factual finding first instance because of trying to figure out what is the veterans court supposed to do whether the veteran appeals to the veterans court and as veterans court please look at this record and when you look at this record you will see that the ort although over looked at alternatives claim that it needed to address is it your position that the veterans court needs to remain in that to the ord to decide for itself in the first instance because you know inherently what clearly happened is the board didn't see that alternative claims in the record and so now the responsibility lies on the veterans court t g to decide whether the board was wrong and because in fact there is that alternative claim that's sitting there and that it in the record so they have to engage in the review of the record right on the veterans what has the authority to review the record determine whether an issue was properly raised before the board pull out however in doing that they are limited to what is in the record below and they cannot make additional factual findings so in this case the real issue is that the veterans court made additional factual findings and considered evidence that the board didn't consider in its decision issue that arises here is if the veterans court is making factual findings in the was appealing to the veterans court saying that the board below overlooked and alternative claimed direct service connection or something like that so please take a look the veterans court reviewed the record concluded there was no direct service connection claim below and then we held we don't have jurisdiction to review this question because the veterans court made a fact finding that there was no claim and we can't review that fact i think so robinson case and our case is that in the robinson case the veterans court did not make any additional factual findings when it was reviewing the record allow determine whether or not the issue of direct service connection was reasonably reigns before the board  instead the veterans court solely relied on the facts as they exist in the record below unlike the robinson case in this case the veterans court made several additional factual findings in order to determine that section three point three or  these findings occur and the joint appendix at three thirty five and this is the service treatment record in which there was that a diagnosis arthritis and service the veterans court made a determination as to what the question mark and so yeah this is a little handwritten thing correct right and and i guess maybe is it enough for you to say there's a disputed question whether there was a diagnosis or with there whether that was just a question there is a dispute as to whether or not there was a diagnosis in sort of i don't think that the veterans were could look at this record and say with certainty that it was clear in the record what the question mark and that diagnosis meant and what the veterans court did here was make a factual and then made this specific fact finding that about you know chronic right ankle or left big toe or or sort of problem so maybe the board did make that  disagree your honor we don't think it's clear in the words decision that they actually looked at that he said evidence and they didn't interpret the meaning of a question mark we believe that but the evidence isn't clear from the face of the record what the question mark means and the veterans  the board is also soon to be considered all that evidence however they do need to discuss all of the relevant evidence of record and when considering service connection nothing is more relevant than whether there is a diagnosis of a chronic condition in ser to the board had the obligation to at least consider that evidence because it wasn't discussed in anywhere in their opinion but then later discussed and factual findings were made by the veterans or in the first in sense that was improper for them when if they look at the record and i guess your concern is they didn't specifically call out this one particular examination report that has this question mark and in your view they needed to go that far it's actually say was dealing with and the service treatment record itself was just a few pages this was a very clear piece of evidence that the board should have considered when they were conducting their review to determine whether or not there was a service connection you would obviously turn to the service treatment record to term and what happened in service and this was evident that they should have considered when making a determination as to what apply here and the real issue is not making a determination as to what you mean it's evidence that the board should have discussed expressly we can't assume that it didn't consider that they should have expressed we discuss that evidence because it was relevant evidence to the issue of service connection and i think the issue is not trying to pinpoint exactly the factual findings that the board made below i think the bigger issue here is that the veterans more factual findings in the first instance that are not clearly part of the record below and that is outside of the veteran's court's jurisdiction and then gives mr clarke no opportunity to contest actual findings and the board had made those factual findings mr clarke would have had an opportunity to contest them at the veterans court to state his disagreement with the interpretation of the service treatment record and the meaning of that question mark because the board never made that's why the facts that's why this case should be reminded so the board can make the factual findings in the first instance and then if mr clarke disagrees with those findings he can challenge them at the veterans court where it's proper to challenge factual findings all of the was also in this case the difference is the veterans operated not limits to what was in the record below and it's sad expanded the record i'm sending and i did i just say i just want to make sure i understand what did the veterans were relying on that was not actually in the record before the board and the interpretation of the question mark and the import of the meaning of the negative x rays but the the the question mark passage was in the record correct or on so the veterans court said i part question mark arthritis notation in the record and there is no statement as to whether or not this means arthritis was diagnosed in service or whether or not it means i thought it was not diagnosed in service and this evidence was not considered was not discuss the board in its opinion and so the board did not make an interpretation as to what that piece of evidence met so the veterans were had no basis in the factual record below for making that statement as to what the question mark  weren't simply looking at the record picking at at face value and making a determination that section three point three or three p wasn't reasonably raised below instead they were looking at the record making additional no factual findings and making  book the veterans court to look at the record and if it just looks at plain language that's ok but as soon as it needs to do the extra hop of interpretive the plain language to try because the plain language perhaps is not so clear that they've if crossed a line that they shouldn't have crossed and that what that it's up to the they ought to reinvent to the board to make that kind of  jurisdiction based on seventy two ninety two to consider the issue at play here which is whether or not entitle meant to service connection based on a condition here it's a chronic condition whether or not that was reasonably raise d the veterans court acted perfectly appropriately it went back through the records it reviewed the record it reviewed the ports findings as judge show and pointed out  page sixty three of the joint appendix specifically shows the factual findings made by the board as to this chronic issue and in relevant part it says the record shows no chronic right ankle or left great toe disability during service so there's there's no way to distinguish robinson based upon the fact that in this case those those factual findings were not in the record in this  case well i guess that put a finer point on at that point the other side's trying to make is that if you look at the record and you can see whether or not you know plainly a certain claimant been raised that the veterans courts and i'll do that but as soon as it there is ambiguity in the record that that ambiguity of ought to be resolved in the first instance by the board and so here i guess in the other side's view what we had here was in fact every cutie and that and so the what the veterans court needed to do was send that back to the board to let the board figure out that i have a duty what the veterans the veterans court based on the robinson case it was tasked with reviewing whether or not this was recently raised and went through the record it made findings or applied the law to the facts that are in the record and in found that it was not recently right now so there's this one document that is not specifically called out in the board decision but there is no law that's been cited where you actually have to call out a specific document the conclusion on page sixty three of the joint appendix specifically covers that document elsewhere in the board decision it discuss the fact that the x rays were negative for mr clarke that's specifically referring to the same document the medical records this consultation report which mentions exercise besides the fact that the board is presumed to have reviewed all of the evidence in the record and so we just don't see how there could possibly be jurisdiction in this case and so and under seventy two ninety two but even regardless there were no factual findings made in the first instance all of these were in the record the board considered them x rays was the other one that had been called out brief i mean the x ray the x rays being negative were mentioned and number of times in the board's decision and in the record i don't like to just briefly address generally i mean china is not an issue here the be the same and here the result would most certainly be the same the board for the or findings that there was no chronic condition that gets you to the same place so for those two reasons generally it is just not  veterans court considered evidence that was not considered by the court below and this court found that was improper because there is no way to know what the board would have done with the evidence if it had considered it in the first instance similarly in this case there's no way to hensley case this court found that it was improper for the veterans or to make additional actual findings in order to reach the terminations when those factual findings were made by the court in the first instance