exceptions to the section to section three point three one seventh's presumptions this is eric because it is up to the secretary to decide that issue if you examine or provides medical information about an individual veterans to enable v a adjudicators to make a case by case a valuation about that individual's entitlement examiner is not allowed to opine as to disease by disease conclusions the regulatory history as well as the training letter cited in the joint appendix support this position section three point three one seven part of the medical examiners consider the  the decision when it gets quote left up to medical experts to identify which diseases are such as diabetes and multiple sclerosis and that they have at least partially explained  this is there because the medical examiner's role is to examine and individual veterans to enable a adjudicators to make the case by case evaluation the exam is not allowed again iran has to speculate as to just so instance this veteran's ailment does not fall within this regulation what needed to happen your honor is the independent medical examiner needed to truly render an examination of mr goodman what she did and what the veterans court endorsed is she said look rheumatoid arthritis which the study that time has a partially explain parallel world on how it would be the right process for the medical examiner and the fact finders here to have reached this very same conclusion in that alternate what is the methodology to get there so that it only not to do it this particular way that happens sure your honor and i apologise for misunderstanding the question to the proper way for the examiner to get there would be to consider mr goodman exposures to consider mr one point before the v a and i can't remember did mr goodman argue that environmental factors shouldn't be considered the environmental argument that was made below is as far as i read it and as far as i recall reading it below was that i'm just trying to my remembering something incorrectly i don't know that you're remembering anything incorrectly it's just that i know that he that the environmental factors such as his exposures to burn pits were specifically asked to be considered once it got to the board of veterans appeals i don't recall any time before the v a him saying that environmental factors should not be considered the argument is that the specific environmental medical experts opinion that has its conclusion and at the graphs on rheumatoid arthritis into three point three one seven all of them so had the examiner really truly articulated and examined mr goodman to your honor's question and do and some of the things that are laid out in the m twenty one had the examiner done that for mr goodman the examiner item i don't know that i'd be here today and i don't know the mr goodman may have one or may have lost but regardless what the veterans court found that she was able to go ahead and graft on rheumatoid arthritis into that sentence of three point three one seven eight to two is the legal error in this case appeared if not conceded at least alluded to that there is no question what the examiner did here there is no question that the examiner are articulated that it was her opinion that rheumatoid arthritis in general has a make and this is what's in the regulatory history that cited and also the train letter in order to be able to render a case by case evaluation the evidence the expert evidence which is all this really is at the end of the day is expert evidence the expert evidence has to speak specifically to the individual if not what the board did and what the court then upheld was allowing one b examiner to speak broadly that rheumatoid arthritis just has a partially explain no matter how much analysis they gave or whether they checked boxes of things that are found in the regulation of the m twenty one of the training letter the fact remains that it ultimately relied on the veterans court's decision specifically hold  pages two and three it ultimately relied on the conclusion unsupported by anything other than and a medical examiner's opinion that rheumatoid arthritis test that we can look at what the board relied on him whether it off the right finding your only thing they're asking us to consider is whether the medical examiner and you do more right or do something different a different kind of methodology yes ok a different methodology that's called for by the law which is an individual case by case yes your honor and that's what makes this case cleaner for your review may if this court your honor is inquired into was a rights process was the correct process is terming whether an individual deserves a presumption for gulf war veterans under thirty eight c f r three point three one seven the right process and well your honor i would hope in that situation that the board would require a little bit more information out of the medical examiner before relying upon that opinion if you look at the medical opinion in this case pages ninety one and ninety one ninety ninety one and ninety two of the record you have on page ninety two nine different medical texts that were a lot upon by the director of rheumatology at a v a clinic and the ford specifically relied upon the doctor's expertise so literature you pose your honor i could forsee a board saying this isn't very persuasive go back to these and do so another medical examination what is consistent what happens in medical examinations for v a benefits as pathological data for the board to consider and the board under four point two considers the medical evidence that it has before this well as the evidence of the service and every other evidence in the record and  sort of you know takes all this evidence and determines whether rating is appropriate for this person based on the disability that's exactly what happened here we have a medical examiner take a look at rheumatoid arthritis based upon section three point three one seven find a can to diabetes and multiple sclerosis and therefore not a medically unexplained i'm going to shortcut this by saying unexplained and as a sort of same use me or medically or explain chronic multi step illness and then that information was passed to the board you can see that the board pages one eleven one twelve one sixteen of the record relied heavily finding this to be very persuasive and concluded on a case by case basis that therefore there was an error in process and how to assess whether or not this particular veteran falls within this particular regulation yes your honor i do want to know just prior to answering that question or the presumption regarding agent orange you look at the particular disease not the impact of the disease on the individual whether the individual has the disease because what are presumptions presumptions are methods of lowering the eviden burden for the claimant instead of having to the demonstrate the three different steps of service connexions existence the disability activation or occurrence during service and then an excess you just need to prove that you have the disease so the way that thirty eight u s c one eleven seventeen statute upon which this is all based and thirty eight c f r three point three one seven reeves is looking exactly at specific illnesses for example the example provided of what are unexplained illnesses our chronic fatigue syndrome fibromyalgia and functional gastrointestinal disorders and that is a to b one two and three  and then a further explanation conic multi symptom illnesses of partially understood at the ology and pathophysiology such as diabetes and multiple sclerosis will not be considered medically unexplained three point three one seven is not instructing the v a adjudicator to determine whether or not mr goodman specific any ology or pathophysiology is explained or not it's talking about the jerseys in general and this is consistent with agent orange  context that actually when read in context the regulatory history says this change in this change being the two thousand and ten october and then if it actually added and the disease is multiple sclerosis and diabetes this change will have the effect of delegating to the v a adjudicators the pose a hypothetical situation where they could come out differently in this case mr goodmans personal physician declined to put in a medical statement if i had not occurred the doctor had actually put in a medical statement replying upon medical tax that reach the exact opposite conclusion as the v a medical examiner but you to cater would have had two different medical examinations reports to look at did you get a could have found one more persuasive than the other that you could or could have found them equal and then the benefit the doubt will kick in but at that point you decatur is making a case by case basis determination as to whether or not rheumatoid arthritis applies in this situation to be a presumption and what's diagnosis that has no you know at the ologies and in the way you apply that regulation is not necessarily looking at all that interesting little details of a particular matter of profile health profile it regulation history that this should be done on a case by case basis correct so i guess i'm a little confused because it sounds like you know science you know is supposed to be you ology no no no no and the allergy and yet we've created a system here where we're going to have this battle of the scientists on a case by case basis and for you know individual veteran claims ye way you understand the way it will be applied it just comes down to that of the doctors and each of those individual hundred cases on the strength of their reasoning and and  disease in question in the perception of the veteran house excuse me in this no this portion of three point three one seven addresses diagnosed illness as serious an undiagnosed section that is not relevant towards this appeal but that when the individual has a mash of different symptoms that no one can diagnose what the medically unexplained chronic multi symptom ellipses are are diagnosable things that the  like chronic fatigue syndrome we know that when doctors can diagnose somebody with that but the doctors are confused as to why it occurs and how it will develop in the individual these are the ones that rest here and w because these are diseases that the medical community is trying to understand now are medical examiner on page ninety two looked at not indifference she said medical literature this week a different piece of medical literature could come out that discredits all nine of us that shows that perhaps crematory crisis has no known any allergy has no known pathophysiology a veteran who comes in and claims at that point has this new study that says that there is you know the previous ones are no longer valid this allows for flexibility in addressing the presumption with these gulf war veterans because if you can adjust very quickly to new literature that's why we have doctors repeatedly making these determinations your honor because literature could very much change in these different areas so that unlike a presumption like the agent orange presumption which lists i think fourteen different diseases straight out those are the fourteen different diseases you need to have the ls one is very specific you need to have a less this one allows for flexibility for all these veterans for years later are developing these gnashes of symptoms these diseases that we're naming but we don't fully understand so your honor it allows for flexibility and to be very clear mr goodman also prop forth a direct connection claim which he does not appeal today which did look at the different environmental factors that he was exposed i think your honor that page one fourteen of the record was what your honor was looking for  asking whether or not mr goodman below had a different argument about environmental factors the board states the attorney argues that the medical adviser was wrong to have discussed environmental factors was concentrating intently perhaps too much so on what my colleague was arguing one reason that i was concentrating so intently is because this argument has come into such stark focus during this oral argument i'm understanding the secretary's point he is saying that under three point three one seven there can be a disease by disease evaluation i do understand the secretary's point a little bit about there being some flexibility and i think that the regulation act all of your regulations to some extent allow for some flexibility but the way that we are reading the regulatory history says that accordingly currently v a adjudicators or other officials cannot make th determination well slower accordingly currently v a adjudicators or other officials cannot make that determination in individual cases without a specific determination by the secretary it's my understanding that if rheumatoid arthritis and my understanding i arrive at my understanding from reading the regulatory history from reading training letters that have rheumatoid arthritis is to be added to three point three one seven with the partially explained pathophysiology and idiology that can be done through notice and comments and by the secretary i'm having frankly your honour's a hard time and i practice veteran's law i'm having a hard time understanding how this and perhaps i'm misunderstanding something but this is a seismic shift what that what the v a is arguing here that as judge chen pointed out that now under the under three point three one seven it's going to become a battle of experts and we had that in this case there's expert evidence in here that rheumatoid arthritis has no known idiology and then there is that there is evidence from this person who rightly points out is a very well qualified person who says that rheumatoid arthritis has a partially explained the ology so we do have a battle of experts but what we don't have is an examiner examining mr goodmans individual case and in every other what about counsels for the government's argument that separately it wasn't  the fact remains your honor that the veterans court held that an examiner for v a can broadly announce that pathophysiology and idiology are partially understood so there was an analysis he's right it's not part of this part of this appeal because there is a legal error at pages two through three of the court's decision and i appreciate very much didn't the board consider a lot of things beyond just the and the medical examiner undertook an analysis but in none of that analysis that was on a direct basis which were sensitive to this field and none of us of that analysis did this argument the one that is that is spelled out of pages two and three of the court's decision that this argument of the partially understood etiology and pathophysiology it's a separate i'm sorry just judge shannon i'm i'm taking a long time to get to the point the point is that there were different theories of entitlement that's the punch line the punch line is yes the board this analysis four different theories of an entitlement under this theory of entitlement which is a very narrowly planted in this court i hope the narrow pleading is whether or not this has to be done on a case by case evaluation which is our position which we support with the regulatory history with the training letter with the way frankly this is done in saying this is still being done he's he's he's my understanding is that was really the former thrust of presidential and so there's nothing that's the continuing case by case decision making process for future veteran claims so that's my understanding of what the  here what is your response to that argument my response to that your part your honor is that this i do understand that this is not going to it's not like v a is going to be able to point to this as president per se nevertheless the veterans court in a decision has said that this is how the law reads and all these technical already wasn't going to like this that that an examiner is able to opine broadly on procedure and i'm talking about the procedure in this case just oh yes i suppose really the problem with this is that we that if the d a is allowed to if the v a wins this case and the veterans court's decision is upheld then a veteran that goes to this doctor is going to lose every time a veteran that goes to a different doctor and as judge him pointed out that relies on different medical treatises without examining that he's going to win and that can't and it is our position that that can't be