the united states court of appeals for the federal circuit is now open and in fashion god save the united states and the honorable court begins i want to say something and you hear me yes or ok both counsel this is a difficult situation of course for everybody so i need you guys both listen up for judge's comments ok a lot of the time in these telephonic hearings a judge will start asking a question and counsel won't hear it so just be really careful about listening ok nineteen of the red brief the government says and i'm quoting the fact remains that mr waterloo pay did not raise and specifically disclaimed presumptive service connection until his veterans court of appeal every man to make factual findings in the st instance and consider this argument cannot be predicated on administrative error two questions one given the specific disclaimer below by mr  to address that question st your honor the what your honor has quoted from the secretary's brief is the post hoc rationalization that the secretary offered to the courts regarding this issue but the board of veterans appeals any waiver counsel post hoc or not the question did did indeed mr dry luby's attorney specifically disclaim below it sure looks to me like you did or she and so whether it is a waiver or a disclaimer of an entitlement to present the service connection it has to be clear unambiguous made with knowledge of the consequences and addressed by the board the board did not find waiver they were not making that  claim i thought i was because i must have misunderstood your honour's question looking at the the language itself that the secretary brought to this court's attention it's that appendix page two hundred and four and that regulation that creates the presumptive service connection for multiple sclerosis so long as it manifested within seven years of mr guadalupe as all military service counsel what was the exact word the counsel below use and here the evidence before the board included a reference to a c t scan that mr guadalupe received right around seven years following his military service he received that c t scan because he had been experiencing facial  sclerosis the board did not address that evidence on appeal the veterans court vacated the board's decision and remanded for the board to address it and address the v a s duty to assist mr  on the merits here was predicated on agency error it had to have bent the veterans court did not retain jurisdiction and it did require additional substance to the agency proceedings and for this reason mr guadalupe is a prevailing of the nd issue that i'd like to address is why the veterans court substantial justification analysis cannot stand the cour are you arguing that courts cannot make alternative decision from this court's review for legal error by artfully wording its decision and so in the what do you mean what do you mean by that i mean isn't it the the veterans court no prevailing party sat is but even if there was prevailing party status the government would substantially justified that seemed to be a prototypical alternative holding does it not if that had been the with the veterans court had done then i think i'd be much closer question but the veterans court said number one mr guadalupe is not a prevailing party and then instead of assuming that he was a prevailing party and then offering a self standing alternate holding s s as to substantial argument st proposed before and so very much embracing its erroneous prevailing party analysis as a predicate here it ruled against mr guadalupe on substantial justification and so there is no  well st of all it's oh no no no no point to me and opinion i don't want a lot of preparatory argument i know what the opinions and you do to look at page six which is where they talk about substantial have by the parties and particularly the government and determine whether the government's position was substantially justified or not in the abstract but not where the veterans court allows an error think i feel like you're blurring the issues now your your argument was that they didn't they one allowed to make this particular alternative holding here although you seem to agree that they could have made a substantial just premise yes your honor which mr well do we have let me let me backtrack because i don't think that the argument that was made and we pretty i think the argument was made in the brief was that this was and was not a proper alternative holding and therefore the better court was without legal authority to do that but even assuming you preserved this argument that this was an improper says substantially less good patient terminations doesn't our clear precedents say that this is not an issue we can review that substantial justification is an application of the wall to fact and your argument that the suckers are that the veterans court has made an improper substantial justification determination is outside of our review there certainly are circumstances where substantial justification presents an application of law to fact but there are also circumstances where it is not smith vs principia is one example of where it is not in this case argument sorry that's a legal argument we were talking about precisely previously where the blue brief said once you've made the st binding on no prevailing party you can proceed on but i thought i heard you agree that of course courts can make alternative findings under each of prevailing party status and substantial justification so what's the legal error here and the substantial justification decision not is found the prevailing party standard you agree that that's a legal issue correct well your honor whether the whether the the the veterans court can proceed to rule on the nd part of any seven let me just let me make it easier for you i'm not trying to trick you here i just want to figure out what we should be to do is legally permissible for courts to make alternative finding substantial justification is a factual inquiry and the application of a lot of fact although i would note that in the cases where the court has found that there was a legal issue with a substantial justification finding it was for example with the t finding or that there's something about how the statute or any case law was written that prevents the veterans court from writing its opinion in a certain way so to the extent he's using words like unlawful or legally interact that there's nothing  bozeman the fact that the board mentioned the presumptive regulation is also not mentioned that in order to explain how that did not apply to mr guadalupe national guard service which was the only argument  characterized as a legal argument st proposed on appeal and so drawing in the error of its prevailing party analysis to substantial justification and therefore infecting it to substantial justification and analysis intended for this court to review these legal errors on substantial justification and i apologize because i lost my train of thought